Employ America Act

  • United States
  • 11/11/2009
  • Berry Appleman & Leiden LLP

Senators Sanders (D-VT) and Grassley (R-Iowa) have drafted the Employ America Act. The bill would prohibit the Department of Homeland Security from approving any employment visa filed by an employer that has, within the preceding twelve (12) months, provided a mass layoff notice pursuant to the Worker Adjustment and Retraining Notification Act (WARN Act). The bill would also require the employer to terminate any existing foreign workers who obtained work visas during the preceding twelve (12) months.

Specifically, the bill would:

  • prohibit the Secretary of Homeland Security from approving any visa authorizing employment in the United States unless the employer certifies to the Secretary of Labor that it (i) has not provided notice of a mass layoff pursuant to the WARN Act within the last twelve (12) months, and (ii) does not intend to provide notice pursuant to the WARN Act. The provisions would not be triggered by a WARN plant closing notice;
  • require the Secretary of Homeland Security to terminate the employment visas of any existing employees approved during the prior year. The visas would terminate sixty (60) days after the WARN notice; and
  • exempt employers from the requirements of the bill if the employer certifies in writing that the total number of workers who are U.S. citizens and are working in the United States has not been, and will not be, reduced as a result of the layoff.

The WARN Act is a federal law that requires certain employers to give advance notice of significant layoffs to employees and others. In general, a notice of mass layoffs is required under WARN if the layoff will result in an employment loss at an employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33% of the employer’s active workforce. To determine how many employees an employer has under the WARN Act, the employer must count all employees at every location, not just the location where employees are being laid off.

BAL Analysis:

As currently drafted, the bill would affect any petition for a “visa authorizing employment” filed by an employer. This would presumably cover both temporary visas and immigrant visa petitions.

In addition to barring an employer from sponsoring any new foreign nationals for employment for a full year, the bill would be extremely disruptive to an employer’s existing workforce. The bill would require DHS to terminate employment visas issued during the prior twelve month period and it would preclude approval of any extension applications that must be filed during the twelve months subsequent to issuance of the WARN notice.

It is unlikely that the bill will be passed as a stand-alone bill, but Senators Sanders and Grassley could seek to add it as an amendment to another bill. BAL Government Relations will monitor the bill’s progress and provide updates.