1.  Senators Kerry and Lugar Introduce the StartUp Visa Act of 2010:

On 2/24/2010, Senators Kerry (D-MA) and Lugar (R-IN) announced the introduction of legislation aimed at driving job creation and increasing America's global competitiveness by helping immigrant entrepreneurs secure visas to the United States.

The bill, titled the StartUp Visa Act of 2010, will allow an immigrant entrepreneur to receive a two year visa if they can show that a qualified U.S. investor is willing to dedicate a significant sum - a minimum of $250,000 - to the immigrant's startup venture.

In general, StartUp visas shall be made available, to qualified immigrant entrepreneurs—

(i) who have proven that a qualified venture capitalist or a qualified superangel investor has invested not less than $100,000 on behalf of each such entrepreneur in an equity financing of not less than $250,000;

and (ii) whose commercial activities will, during the 2-year period beginning on the date on which the visa is issued (I) create not fewer than 5 new full-time jobs in the United States employing people other than the immigrant’s spouse, sons, or daughters; (II) raise not less than $1,000,000 in capital investment in furtherance of a commercial entity based in the United States; or (III) generate not less than $1,000,000 in revenue.

The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card.  After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status. 

This should create some very interesting opportunities for foreign entrepreneurs.  It will also create jobs for U.S. citizens.  I will post further information on this effort when I receive it.

2.  Employ American Workers Act (EAWA):

The EAWA was enacted to ensure that companies that receive funding under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act do not displace U.S. workers.  Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” An H-1B dependent employer must make additional statements to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA).

Before an H-1B application can be submitted, an employer must obtain certification of a labor condition application.  Special attestation requirements include a statement on the LCA by the employer that they have made good faith efforts to recruit U.S. workers.  The attestation must contain the number of workers sought, the occupational classification for each, the prevailing wage and method for determining it, and the wage rate and working conditions.  The employer must make this attestation available for public inspection within one day of filing with DOL. 

For any employer deemed “H-1B dependent”, the cost of filing an H-1B petition will likely increase.  To establish this good faith effort, the employer will have to prove that they have made an effort to recruit for this position.  If the employer recruited and only found the foreign national they wanted to hire, the answer is simple:  employers would put in copies of ads, efforts to recruit at job fairs, on campus recruiting, etc… 

However, what if H-1B dependent employer receives an unsolicited resume from a well qualified applicant and wants to sponsor the applicant for an H-1B?  The employer will have to demonstrate that good faith effort, and that would involve expenditure.