Economic Stimulus Bill Includes H-1B Restrictions for TARP Recipients
The recently enacted economic stimulus law (the American Recovery and Reinvestment Act of 2009) includes H-1B restrictions for recipients of TARP (Troubled Assets Relief Program) funds. It specifies that during the two-year period beginning on the date of enactment, any recipient of TARP funding (under title I of the Emergency Economic Stabilization Act of 2008 or section 13 of the Federal Reserve Act) is generally prohibited from hiring any H-1B nonimmigrant unless the recipient complies with the requirements for an H-1B dependent employer.
An H-1B dependent employer must comply with the following attestations:
- That the employer has, before filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position.
- That the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days before the filing of the H-1B petition and ending 90 days after its filing.
Although the normal H-1B dependent employer rule provides an exemption from these attestations if an H-1B worker either possesses a master’s degree or receives wages of $60,000 or higher, the new law does not allow TARP funding recipients to claim these exemptions.
Only employers that receive funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, also known as the “TARP Bill”) or that received funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies) are subject to these restrictions. Companies that will receive funds under the recently enacted stimulus law are not subject to these H-1B restrictions.
The new law defines “hire” as permitting “a new employee to commence a period of employment.” Therefore, the restriction should not apply to H-1B extension requests filed on behalf of current H-1B employees of covered employers. It also should not cover existing current employees who are in another status such as F, TN, or L-1A, and are seeking to change status to H-1B. However, the new legislation likely will cover new employees seeking to transfer in H-1B status from another employer to a covered employer. Note that neither U.S. Citizenship and Immigration Services nor the Department of Labor has implemented any regulations or guidance on this yet.