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H-1B Employment Restricted for TARP Recipients

Escalator 122578018The Stimulus Act, signed by the President on February 17, 2009, places new restrictions on H-1B employment for US companies that receive TARP funds for a two year period.

The 2009 Stimulus Act and H-1B Restrictions

On February 17, 2009, President Obama signed into law the Stimulus Bill, also known as the American Recovery and Reinvestment Act (ARRA, or the Stimulus Act), which included a sub-section called the Employ American Workers Act (EAWA), and § 1611 deems certain banks and financial institutions to be “H-1B dependent” under Department of Labor regulations, thus subjecting them to strict provisions regarding the hiring of H-1B workers and displacement of American workers (generally, US citizens and legal permanent residents) for a two year period from the date of enactment, February 17, 2009, to February 16, 2011.

Companies Subject to New H-1B Restrictions under Stimulus

Banks and financial institutions subject to these new provisions under the Stimulus Act include recipients of TARP funds (Title I of the Emergency Economic Stabilization Act of 2008, Public Law 110-343) or funds through the Federal Reserve Discount Window (in accordance with §13 of the Federal Reserve Act, 12 U.S.C. § 342 et seq., which provides for short-term, secured loans to financial institutions and other companies).  Firms that receive funds under the Stimulus Act itself, such as companies contracting for infrastructure projects or other programs, are not subject to the H-1B hiring restrictions under the Stimulus Act.

The US Treasury publicly discloses TARP recipients. However, recipients of funding through the Federal Reserve’s Discount Window program are not publicly disclosed (see Question #9 of FAQ on Federal Reserve Discount Window lending program). Any state or federally regulated financial institution is generally eligible for Discount Window funds, along with some other companies other than banks and financial institutions.

Additional Requirements and Attestations for H-1B Employment

Under the Department of Labor (DOL) regulations, “H-1B dependent” companies (and willful violators of the H-1B program) must sign additional attestations on the Labor Condition Application (LCA), which must be filed with each H-1B petition. These additional attestations are:

  • Prior to filing the H-1B petition, the employer has taken bona fide steps to recruit US workers for the position for which an H-1B worker is sought, and has offered a wage that is at least as high as that required under law to be offered to the H-1B worker. In addition, the employer must attest that in connection with this bona fide recruitment effort, they have actually offered the job to any US worker who applies and who is equally or better qualified for the position.
  • The employer has not laid off, and will not lay off, any US worker in a job essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

(More information from the USDOL on H-1B dependency and displacement of US workers.)

No Exemptions from Additional H-1B Attestations for TARP Recipients and Federal Reserve Discount Window Recipients

Under the regular H-1B dependency provisions set by the Department of Labor, some H-1B workers are exempt from the additional attestations even if their sponsoring employer is considered H-1B dependent.  These include those who have a Masters Degree or higher, or those who receive at least $60,000 annual salary. The Stimulus Act provision removes these exemptions for employers receiving TARP or Federal Reserve Discount Window funding (as described above).

H-1B Extensions and Changes of Status for Existing Employees

Since the Stimulus Act refers to “new hires,” the new H-1B dependency provisions would appear inapplicable to H-1B extensions, or to changes of nonimmigrant status (from F-1 optional practical training, for example, or from TN or L-1B status, etc.) for existing employees of TARP or Federal Reserve Discount Window recipients.

See also information from USCIS, below:

USCIS Announcement on TARP Recipients and H-1B Employment

USCIS Q & A on Employ American Workers Act (TARP Recipients and H-1B Employment)

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