Revised Guidelines for H-1B Employers Accepting Funds under the Troubled Asset Relief Program or (TARP)

Building.jpgRevised Guidelines for H-1B Employers Accepting Funds under the Troubled Asset Relief Program or (TARP)

The USCIS has recently announced updated the filing guidelines for companies that employ H-1B workers and also accepted funds under last year’s Troubled Asset Relief Program or TARP. Specifically, companies that have repaid their obligations to the Federal Government must no longer endure the burden of additional attestations when hiring new H-1B employees. This adjustment is a move in a positive direction and signals a possible return to economic progress following the recent struggles in the world economy.

Background of the relationship between TARP and the H-1B Program

On February 17, 2009, the Employ American Workers Act (EAWA) was enacted, placing additional H-1B related requirements upon employers that had accepted funds from the Federal Government under TARP. These additional attestations include a statement that no US worker has been displaced by the company for 90 days before and 90 days after the date of filing of the visa petition. Additionally, the company must attest that it has made a good faith effort to recruit a US worker for compensation that is greater than or equal to industry wide standard. Finally, the company must attest that it would hire any qualified US worker for the position. These attestations can be very burdensome and detrimental to employers in this category, seeking H-1B workers.

Which H-1B Workers Are Affected by the EAWA?

The EAWA only applied to new H-1B hires by a company accepting TARP funds. This rule does not apply to workers already working for the TARP accepting company in another visa status who will be changing status to H-1B. It also does not apply to persons seeking an extension of their H-1B status. Finally, the EAWA in large part does not affect consultants who are placed in TARP fund accepting companies, but who are actually employed by a separate consulting firm.

What has changed?

Companies that have paid back TARP funds prior to the filing of a Petition for a new H-1B worker are now permitted to indicate that they have not taken TARP funds on the Department of Labor and USCIS documentation. The USCIS has indicated that additional documentation may be submitted proving the company’s obligation under TARP has been fulfilled, however additional documentation is not required.

Moving Forward

Companies that have repaid their TARP obligations are now free to again recruit the best H-1B eligible talent in the world without the hand of government interfering to such an extreme extent in company hiring practices. If your company has questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney.