The $787B USD economic stimulus package, which passed through Congress and was into law on Tuesday by President Obama, contains many provisions that affect the tech industry.  While much of the funding it provides and funding that was cut from the initial legislation has been extensively discussed, one overlooked section of the bill is its ramifications on the hiring of foreign workers.

In the United States, many companies hire a handful of workers on H-1B visas, which allow foreign workers to work legally and (relatively) free of hassle within the U.S.  While the number of H1-B workers at most companies is pretty low, in some departments, such as IT departments, the number can be substantial.  The few companies that do hire a large percentage of H1-B workers, such as Microsoft, are deemed "H1-B Dependent" and have special restrictions placed on them by the federal government.

Now these same restrictions are being placed on companies accepting funds from the stimulus or other bailout packages.  The companies receiving funds will be classed as "H1-B Dependent" regardless of the number of foreign workers they employ.  Elizabeth Espin Stern, an attorney and leader of the global immigration practice of law firm Baker & McKenzie International, helped to elaborate on these new restrictions. She notes that companies will now have to show "in good faith" that they look for Americans for a position, before hiring an H1-B worker to it.

Additionally, employers must offer at least the minimum of "prevailing wages" for the position and verify that they haven't displaced an American worker within 90 days of the hiring.  They also have to offer the job to at least one American candidate if they applied and are equally or better qualified to the H1-B job-seeker. 

The government conducts regular audits for compliance.  Those companies found in violation face stiff fines and loss of their H1-B workers.

According to Stern, the financial and banking sector has less than 1 percent of its employees working on H1-B visas.  Currently 85,000 applications for the visas are filed annually.  While these companies are only expected to be marginally effected, the new rules may have potentially serious effects on foreign jobseekers in the IT sector of the financial world.

Senators Chuck Grassley, R-Iowa, and Bernie Sanders, I-Vermont, first proposed the restriction.  Initially, they sought to have companies receiving the funding barred from hiring workers on H1-B visas.  That proposal was later scratched and replaced by the "H1-B Dependent" provisions.  Sen. Grassley's spokesperson still called the bill a victory, stating, "The goal is to make qualified American workers a top priority."

However, some are critical of the new legislation, saying companies should be able to hire whoever they think will provide the best talent and not feel pressured to hire only Americans.  Ms. Stern states, "Many of these financial services, credit card companies use H-1B for specialized IT talent related to risk management, enterprise systems.  Why tie one hand behind their backs" in employing this talent?"

Immigration attorney Frida Glucoft of law firm Mitchell Silberberg & Knupp says that the new legislation may have dire impacts on foreign graduates of U.S. universities, seeking jobs in economics, technology, mathematics, and business.  She states, "There will be a brain drain of talent that will go elsewhere.  This is a slippery slope for the U.S."

Others cheer the move, stating that the law should put Americans first before foreigners.  Donna Conroy, executive director of Bright Future Jobs, an advocacy group pushing for H-1B visa reform, adds, "This is a political victory.  It's now an issue on the national radar screen."

Senators Grassley and Richard Durbin, D-Ill. plan to soon try to reintroduce sweeping H-1B and L-1 visa anti-fraud and anti-abuse legislation.  If passed, this legislation could have an even greater impact on foreign workers in the U.S., placing more restrictions on companies like Microsoft who rely on foreign workers.