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H-1B Dependent Employer Attestations for TARP/Section 13 Recipients

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March 27, 2008 with information on revised Form I-129

Under the Employ American Workers Act (EAWA), part of the American Recovery and Reinvestment Act of 2009 (the "Stimulus Bill") effective February 17, 2009, banks and other companies that receive TARP (Troubled Asset Relief Program) money or credit directly from the Federal Reserve System under section 13 of the Federal Reserve Act (referred to as "covered funding") must make "H-1B Dependent Employer" attestations on the Labor Condition Applications (LCAs) they file in support of H-1B petitions for newly hired H-1B employees.

In addition, all H-1B employers must now use a newly revised (3/11/09) Form I-129, which contains a new question on the H-1B Data Collection and Filing Fee Exemption Supplement about whether or not they are a recipient of TARP funding. (see additional USCIS filing guidance below).

A weekly-updated list of employers who are recipients of TARP funding can be found on the Treasury Department Web site. (Note: This Web site lists recipients of TARP funding, but not recipients of Section 13 funding, so it is not all-inclusive).
Read an FAQ from the Federal Reserve on Section 13 funding.

Department of Labor LCA Guidance

The Department of Labor posted the following notice on February 20, 2009:

WARNING: Effective upon the enactment of HR 1, the American Recovery and Reinvestment Act of 2009, pursuant to section 1611(b), Div. A, 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)) for new employment unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) (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. Employers who are recipients of such funding may not file Labor Condition Applications (LCAs) for new employment unless they complete the actions and make the attestations required of dependent employers. *Until further notice, for those companies that are not dependent H-1B employers but are subject to this provision, please check Box “B” in Section F-1.1 of the ETA-9035 in order to demonstrate compliance as required. It is recommended that such employers retain documentation regarding their status.*

Information regarding the additional attestations required of H-1B-dependent employers—non-displacement and recruitment of U.S. workers--can be found at 20 CFR sections 655.738 and 655.739.

H-1B Dependent Employer Attestation Language

NAFSA note: the H-1B Dependent Employer language that covered funding recipients must attest to is:

A. Displacement: The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by the application.

B. Secondary Displacement: The employer will not place any H-1B nonimmigrant employed pursuant to this application with any other employer or at another employer's worksite UNLESS the employer applicant first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the placement, and the employer applicant has no contrary knowledge.

C. Recruitment and Hiring: Prior to filing any petition for an H-1B nonimmigrant pursuant to this application, the employer took or will take good faith steps meeting industry-wide standards to recruit U.S. workers for the job for which the nonimmigrant is sought, offering compensation at least as great as required to be offered to the H-1B nonimmigrant. The employer will (has) offer(ed) the job to any U.S. worker who (has) applied and is equally or better qualified than the H-1B nonimmigrant.

USCIS stated that it is important to note that "The normal exception to the H-1B dependent employer requirements that an H-1B nonimmigrant is exempt from the dependency calculation if the individual earns a salary of at least $60,000 or has a master’s degree or higher is not available to companies that have received covered funding."

Since the statute applies only to new hires, LCAs filed in support of petitions for aliens that were already employed by the employer before February 17, 2009 (the effective date of the EAWA) do not have to contain this attestation.

Text of the Stimulus Bill Imposing the H-1B Attestation Requirement

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.

USCIS Guidance On Procedures and Forms

All H-1B employers must now use a newly revised (3/11/09) Form I-129, which contains a new question on the H-1B Data Collection and Filing Fee Exemption Supplement about whether or not they are a recipient of TARP funding. All H-1B employers, should use this new form and answer the TARP funding question, regardless of whether or not they are TARP recipients.

Note: If you’ve already filled out a prior Form I-129, you can still file it, but you must supplement it with page one of the new Form I-129 H-1B Data Collection and Filing Fee Exemption Supplement, indicating “Yes” or “No” at the TARP funding question. If this form is not included, the Service Center will likely RFE, delaying adjudication.

Note: The revised 3/11/09 Form I-129 H supplement asks only if the petitioner is a TARP funding recipient. It does not ask if the petitioner is a section 13 Federal Reserve Act funding recipient. AILA reports [AILA InfoNet Doc. No. 09033061 (posted Mar. 30, 2009)] that USCIS informed them that "If the petitioner received funds through either TARP or Section 13, USCIS advises that the answer the TARP question should be 'yes.'" In the same USCIS liaison report, AILA asked USCIS how TARP/Section 13 recipients should inform USCIS "that the beneficiary of a particular petition is not subject to the EAWA requirements, e.g. because it is an amended petition or not new employment under the parameters listed in the March 20, 2009 Q&A. USCIS has indicated that petitioners in this situation should still indicate on the H-1B Data Collection Sheet that the petitioner has taken TARP or Section 13 funding, but stated that members may note on the form and cover letter or add an additional cover sheet to explain why the particular petition/beneficiary is not subject to the dependent employer provisions."

USCIS I-129 filing guidance from a USCIS Q & A:

Q. How is USCIS implementing EAWA?

A. EAWA affects the current LCA process administered by DOL and the USCIS petition process for companies seeking H-1B workers. Companies subject to EAWA will now need to make new statements regarding recruitment and hiring of U.S. workers.

USCIS is revising Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. This revised form will be posted to the USCIS website in time for the next cap subject H-1B filing period that begins on April l, 2009. While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010.

However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

A valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. Therefore, if the petitioner indicates on its petition that it is subject to the EAWA, but the LCA does not contain the proper attestations relating to H-1B dependent employers, the H-1B petition will be denied.