H-1B Hiring Limited for TARP Recipients

The American Recovery and Investment Act of 2009 (also referred to as the “stimulus bill”) signed by President Barack Obama on February 17 contains a provision requiring recipients of TARP funds or Federal Reserve loans to comply with requirements normally placed on H-1B dependent employers. Generally, an H-1B dependent employer is one with 15 percent or more of its total workforce comprised of H-1B workers. Such dependent employers must make additional attestations in hiring H-1B workers, including:

• The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status;
• The employer has taken good faith steps to recruit U.S. workers for the job for which the H-1B worker is sought;
• The employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker; and
• The employer will not place the H-1B worker at the worksite of another employer unless the employer first makes an inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker.

Under the stimulus bill provision, recipients of TARP funds or Federal Reserve loans will be required to meet these additional requirements for two years. It is important to note that employers that are subject to this provision need only meet the additional requirements for new hires; thus, extension petitions for existing H-1B workers are not affected.  Likewise, upcoming H-1B cap filings for individuals already employed by the sponsoring employer in another status (such as F-1 or J-1) are apparently not subject to the dependent requirements.

As a side note, the provision requiring E-Verify participation from any employer that received funding under the stimulus bill was not included in the final version passed by Congress.

Note: This article was published in the February 2009 issue of the Immigration eAuthority.