Stimulus Bill, TARP Companies and H-1Bs – Summary

A week after the Stimulus Bill was signed into law and the dust has started to settle, we have compiled a summary of the key points of the Stimulus Bill’s restriction on TARP-recipient companies to issue new H-1B visas.   The law became effective upon the stimulus bill’s enactment, February 17, 2009. It is important to note that the law will remain effective for only two years after its enactment. Thus, it will sunset on February 16, 2011.

Final Text of the Stimulus Bill Imposing the H-1B Limitations

Section 1611 of the American Recovery and Reinvestment Act of 2009 (”ARRA”)  reads:

SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING TARP FUNDING.

(a) SHORT TITLE.—This section may be cited as the ‘‘Employ American Workers Act’’.

(b) PROHIBITION.—

(1) IN GENERAL.—Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110–343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H–1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

(2) DEFINED TERM.—In this subsection, the term ‘‘hire’’ means to permit a new employee to commence a period of employment.

(c) SUNSET PROVISION.—This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

What Exactly Are the H-1B Restrictions?

Covered companies are not allowed to “hire” an H-1B worker unless the company has complied with additional LCA attestations which are generally imposed on H-1B dependent employers.  These additional attestations are:

(1) that the employer has, prior to 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; and

(2) 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 prior to the filing of the H-1B petition and ending 90 days after its filing.

Which Employers Are Covered Under the H-1B Restriction?

A company which receives funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, the “TARP Bill”) or that receives 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) is covered under the H-1B restriction.   USA Today has a chart with names of the TARP companies and the U.S. Treasury has a list of transaction reports under the TARP program.

Note that companies recipients of funds pursuant to the ARRA stimulus bill, but not under the TARP Bill, are not subject to the H-1B restriction.

Are There Exemptions?

Generally, employers who are H-1B dependent can claim one of two exemptions – having salary higher than $60,000 or having a master’s degree – and avoid having to provide the additional attestations.  However, these two exemptions have been made explicitly unavailable to TARP companies.

What Happens to H-1B Workers at Existing TARP Companies?

The statute is drafted to prohibit any “new hires” between February 17, 2009 and February 16, 2011.  “Hire” is defined as permitting “a new employee to commence a period of employment.” As a result, it seems that the H-1B restrictions do not apply to H-1B workers who are already employeed at the TARP companies.  However, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.