Restrictions for H1B Workers under the Stimulus Bill
Posted Feb 27, 2009
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Many concerns and rumors are circulating regarding the immigration-related restrictions contained in the American Recovery and Reinvestment Act of 2009 (ARRA), known as the Stimulus Bill. Provisions within the Stimulus Bill, which are referred to as the Employ American Workers Act, are explained here for the benefit of MurthyDotCom and MurthyBulletin readers. Most employers are neither impacted by the changes under this act nor otherwise generally prevented for filing H1Bs. The act does not interfere with existing H1B petitions. The new rules impose additional requirements and restrictions solely upon H1B filings made by employers that received funding under the Emergency Economic Stabilization Act of 2008 (TARP Bill), or those receiving certain short-term, low-interest loans through the Federal Reserve. These changes are significant, both for the particular employers as well as for the policy and politics they represent. They do not impact most H1B employees working currently, however; even those working for such employers.
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Employers Affected are Certain Banks and Financial Institutions
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As mentioned, the restrictions are placed solely upon employers that have received TARP funding, and those who have benefited under provisions allowing the Federal Reserve Bank to issue certain short-term, low-interest loans to financial institutions and, in an emergency, other organizations. The list of financial institutions and brokerage firms that received TARP funding is available on the Department of Treasury WebSite. The identities of Federal Reserve loan recipients are not publicly available.
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Companies that benefit, directly or indirectly, from funding provided under the Stimulus Bill are NOT subject to the additional requirements for hiring H1B workers. Thus, the restrictions should not affect companies that work for the banks or companies that deal with the government, whether state or federal. It primarily impacts banks and other financial institutions that receive the funding, as mentioned in the act.
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Affected Employers Must File Additional Attestations
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Employers that have received the TARP funds or specified Federal Reserve loans are subject to additional requirements when filing H1B cases in order to hire nonimmigrant workers. The employers must follow the same procedures applicable to employers that are H1B dependant. Such employers must make additional attestations on the Labor Certification Application (LCA) and, of course, these attestations must be accurate.
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The LCA attestations involve taking good-faith steps to recruit U.S. workers for the specific position the employer wishes to fill with the H1B worker. The employer must attest that the job has been offered to any equally or better qualified U.S. worker who applied for the position. Additionally, the employer must make certain non-displacement attestations. These require the employer to attest that they did not displace and will not displace U.S. workers 90 days before and 90 days after the H1B filing. Essentially, this means that they have not and will not layoff any U.S. worker in a position equivalent to the H1B position within the 180-day timeframe. There are also secondary displacement attestations that are needed when the employee is to be placed at the worksite of another employer.
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Affected Employers Cannot Enjoy Exemptions Available for H1B Dependent Employers
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Under the H1B-dependant rules for attestations, described above, there normally is an exception when filing for workers who are exempt. These exemptions from the attestation requirements are extended to workers who have masters' degrees (or higher) or make at least $60,000 per year. However, these exemptions do NOT apply to the employers who are subject to the Employ American Workers Act. Thus, the employers who are subject will need to comply with the attestation requirements, regardless of such employees' education or earnings levels.
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New H1B Employees Affected by this Act
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The law states that, for the subject companies, it is unlawful to hire any H1B nonimmigrants without following the necessary procedures. The term "hire" is defined in the law to mean "permit a new employee to commence a period of employment." Thus, the restrictions should not apply to existing employees with approved H1B petitions. It also would seem that it should not apply to the existing employees if the employer needs to request extensions of their H1B status. However, this is yet to be completely clarified.
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Effective Dates for Restrictions : 17 FEB 2009 - 16 FEB 2011
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The law became effective on February 17, 2009. It is only valid for two years. Thus, unless extended, it is scheduled to end on February 16, 2011.
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Conclusion
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The restrictions in the Stimulus Bill are not as far reaching as they could have been and do not apply to most U.S. employers. However, they do extend to some of the most troubled U.S. employers, as the recipients of the first "bail-out" funds. These employers require the freedom to hire the workers they need, using their best business judgment. A lot will depend upon what happens with the economy, and whether the government will impose more restrictions on the hiring of H1B workers.