H-1B Amendment Included in Final Version of Economic Stimulus Bill

On Friday, Congress gave final approval to President Obama's $787 billion economic stimulus bill. It is expected that President Obama will sign the bill into law this week. The final version of the package does not contain a proposed amendment that would have required all stimulus-fund recipients to use the government's E-Verify electronic work authorization eligibility program. However, the bill does include the Employ American Workers Act, which forbids employers receiving funding under the Troubled Assets Relief Program (TARP) from hiring additional H-1B nonimmigrant workers unless the employer complies with the H-1B "dependent employer" rules.

TARP was created under the Emergency Economic Stabilization Act of 2008 and gives the federal government authority to purchase certain types of troubled assets from financial institutions. Under the new economic stimulus bill, financial institutions receiving TARP funds will have to comply with the H-1B rules for dependent employers on any petitions filed for new H-1B employees during a two-year period beginning on the bill's effective date. Affected employers will need to check the H-1B dependent box on the Labor Condition Application and attest that:

• They will not displace any of their similarly employed U.S. workers.
• They have taken good-faith efforts to recruit U.S. workers for the job.
• They have offered the job to any U.S. applicant who applies and is equally or better qualified for the job than the H-1B beneficiary.

The non-displacement attestation requires employers to make sure they have not laid off a U.S. worker from an equivalent position within 90 days before and after the filing date of the H-1B petition. Employers must retain all records relating to any resignation or termination of an employee in the same locality and same occupation that occurs during this 180-day window.

To document the recruitment attestation, the Department of Labor requires the employer to maintain evidence of its recruitment methods used and any application materials or related documents.  

With the April 1 filing deadline fast approaching for all new H-1B temporary worker petitions, employers must determine whether they have been the recipient of TARP funds and whether they will need to file their H-1B petitions as a dependent employer. The Employ American Workers Act specifically refers to the hiring of "new" H-1B workers, so it is not expected that the act will affect H-1B extension petitions for an employer's existing H-1B workers. We continue to monitor the status of the economic stimulus bill and will update you with the latest developments. In the meantime, our immigration attorneys are available to explain the H-1B amendment in more detail, including how it may affect your business.