Letter on Employ America Act (S. 2804)

12/11/2009
Letters to Congress

​December 11, 2009

Sent via Electronic Mail

The Honorable Charles Grassley
U.S. Senate, 135 Hart Senate Office Building
Washington, DC 20510-1501

Re: Employ America Act (S. 2804)

Dear Senator Grassley:

On behalf of the American Council on International Personnel (ACIP), I am writing to express our appreciation and shared concern for the protection of U.S. workers in today’s economy. We also would like to share with you some feedback we have received from our members regarding the unintended consequences of the Employ America Act (S. 2804). As you know, ACIP is a membership-driven trade association dedicated to promoting access and retention of top global talent and compliance with immigration law and policies. We represent around 200 of the largest U.S. employers with a presence both in the United States and abroad and at least 500 employees worldwide. Collectively, our members employ millions of U.S. workers in industries ranging from high-tech, biotechnology, energy, healthcare, manufacturing, to private and public research and academic institutions.

ACIP supports the vigilant enforcement of existing law to protect the integrity of the U.S. immigration system. In fact, since 1972, ACIP has sponsored seminars and produced publications aimed at educating human resource and legal professionals on immigration compliance-related topics. We also believe that through the proper use of nonimmigrant and immigrant visas programs, U.S. employers can remain competitive and innovative through the recruitment and retention of the best and brightest.

Our concern with S. 2804 is that it is overbroad in its scope and would prevent the legitimate use of many visa programs. Moreover, an unintended but inevitable result of S. 2804 is that U.S. employers’ recovery from the economic downturn would be hindered by an inability to access the right talent at the right time. Indeed, the legislation appears to be premised on an assumption that employers hire non-U.S. workers simply to replace laid-off U.S. workers. However, that is just not the case with our members, and the Immigration and Nationality Act actually prohibits blatant citizenship status discrimination should that be the reason for the displacement.

Specifically, S. 2804 would prohibit the Secretary of Homeland Security from approving any employment visa filed by an employer who has, within the preceding twelve months, provided a notice of mass layoff pursuant to the Worker Adjustment and Retraining Notification (WARN) Act. It would even require the dismissal of some foreign national workers already on payroll. The prohibition would not take into account the location of the layoffs, or the duties of the laid off employees vis-à-vis those of the relatively few foreign nationals ACIP members recruit. Additionally, in the case of a merger, the acquiring entity may incur WARN Act obligations when it is the acquired company that experienced a reduction in workforce. Finally, S. 2804 would prohibit even the transfer of managers and executives of overseas branches, even though such transfer has no connection with the reduction of the U.S.-based workforce.

ACIP thanks you for your attention to the concerns we raise in the bill. We look forward to working with you and your staff to develop a set of sensible immigration policies which protect U.S. workers and preserve the ability of America’s largest employers to access and retain necessary global talent to remain competitive and innovative, something which ultimately will create more jobs in America.

Sincerely,
Rebecca K. Peters
Director and Counsel for Legislative Affairs​​

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