The Stimulus Bill and TARP will affect how employers will be able to employ foreign specialists through H1B visas by imposing additional restrictions normally limited to H1B-dependent companies.

 

Recently, in the news the U.S. Citizenship and Immigration Services (USCIS) issued an announcement 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). Neelam Bhardwaj, an expert in the field of immigration, describes the new changes and how they will affect employers who receive TARP funds. The H-1B visa is a non immigrant visa available to professionally skilled alien workers, who are filling positions in a “specialty occupation,” requiring the minimum of a U.S. bachelor’s degree or foreign equivalent. U.S. employers recruit worldwide for professional talent in fields such as engineering, medicine, IT specialists, accountants, professors, scientists and other specialized fields. The foreign worker must be paid the prevailing wage for the position and a labor condition application (known as the LCA) must be signed and certified by the Department of Labor. This contains various employer attestations which can subject the employer to severe penalties if not followed.

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. 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.

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. NC immigration lawyer Neelam Bhardwaj explains, “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. 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.

There is a cap of 65,000 visas for first time H visas; and 20,000 visas are available for holders of a U.S. masters degree (there is no cap for positions with non-profit organizations or institutions of higher education). This year as of April 7, 2009, USCIS did not receive more than the allotted number of H-1B visas under either the 65,000 H-1B cap, or the 20,000 Master’s cap, which was the last day of the 5 day filing window. Employers can continue to file H-1B petitions with an October 1, 2009 start date until the USCIS announces the “final receipt date,” which is when the 65,000 or 20,000 caps would have been met. Obtaining a request for H-1B classification has become difficult in recent times, and employers must take pains to demonstrate that the position is a “specialty occupation,” which is an occupation that requires the minimum of a bachelor’s degree in a specific specialty or its equivalent. In the case of a consulting company, where the H-1B worker will be assigned to third party client sites, the employer must further establish that the position is not speculative and that it will be able to employ the H-1B worker, at the very outset, in a specialty occupation.