USCIS Clarification on H1B Requirements for TARP Fund Recipients
Posted Apr 03, 2009
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The U.S. Citizenship and Immigration Services (USCIS) issued an announcement (PDF 40.5KB) on March 20, 2009, clarifying H1B requirements for employers who wish to hire H1B workers and who are recipients of funds under the Troubled Asset Relief Program (TARP). These restrictions are mandated by the Employ American Workers Act (EAWA), which is part of the American Recovery and Reinvestment Act (Stimulus Bill). Additional information on the requirements for TARP-affected H1B employers, who may need to file H1B petitions, is provided here for the benefit of MurthyDotCom and MurthyBulletin readers.
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As readers will recall from our February 27, 2009 article, Restrictions for H1B Workers under the Stimulus Bill, there are additional requirements for certain H1B filings by U.S. employers who are recipients of TARP funds. The requirements apply only to H1B petitions for newly hired foreign national workers on or after February 17, 2009 through February 16, 2011. The USCIS interpretation of the Stimulus Bill and the EAWA for TARP-subject employers is provided below.
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Attestations More Stringent than H1B Dependent Employers
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As previously reported on MurthyDotCom, under the new EAWA requirements, H1B employers who receive TARP funding must meet requirements normally reserved for H1B-dependent employers. These employers must make additional attestations to the U.S. Department of Labor (DOL) when filing labor condition applications (LCAs) in connection with each H1B petition they file.
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These additional attestations include taking good-faith steps to recruit U.S. workers for the position in question; offering the job to any U.S. workers who apply and qualify; not displacing any U.S. worker from a job that would be considered an equivalent of the job offered to the H1B worker within 90 days prior to the filing of the H1B petition and within 90 days after its filing. Additionally, these employers have to attest that no U.S. workers were displaced within the same timeframe at the actual placement locations of the H1B-sponsored workers.
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These employers are not exempt from making these attestations under any circumstances. The standard exceptions to these attestations for “exempt” workers that are available to H1B-dependent employers (masters degree holders or H1B employees earning at least $60,000 per year) do not apply to TARP-subject employers.
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TARP-Subject Employer Restrictions Apply Only to "New" Employees
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Any TARP recipient must make additional attestations when filing an H1B petition for a new employee hired on or after February 17, 2009 through February 16, 2011. These requirements, therefore, do not apply to H1B petitions filed outside of this timeframe, or to any petition to extend the H1B status of a current employee, as clarified by the USCIS under the current reading of the law. Additionally, under the guidance provided by the USCIS, these provisions do not apply to any current employee who is seeking to change status to that of H1B during the relevant time period.
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Employers to Use New Form I-129 of March 2009 for H1B Filings
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The Petition for Nonimmigrant Worker (Form I-129), has been revised to include a question asking whether the employer is a recipient of TARP funding. The USCIS encourages all H1B employers, regardless of whether they are subject to the additional H1B requirements, to use the new March 11, 2009 revision of Form I-129 starting immediately. This notwithstanding, prior editions of the form are still being accepted.
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The first page of the H1B Data Collection and Filing Fee Exemption Supplement of the new form includes a question on EAWA attestation requirements. Any H1B employer, who has prepared a final H1B package for fiscal year 2010 cap filings using the old version of Form I-129, is encouraged by the USCIS to complete the single page in the revised form that carries the EAWA question and to include that with their H1B filings. The USCIS will use this information to determine whether the petitioner is subject to the new requirements. If the employer is a recipient of the TARP funding and the LCA does not contain all the required attestations, the USCIS will deny the I-129 petition or the H1B petition.
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Conclusion
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H1B employers subject to the additional attestation requirements must comply with EAWA under the latest guidelines issued by the USCIS. As DOL enforcement of H1B LCA violations becomes a common occurrence, it is more important than ever for all affected employers to assure compliance with the revised H1B filing requirements. Those affected by the requirements mandated by the EAWA are encouraged to consult with a knowledgeable immigration attorney to ensure compliance with the law and regulations.