On March 20, 2009, the USCIS revised the nonimmigrant visa petition Form I-129 to enable the agency to gather information regarding any petitioners who have accepted TARP (Troubled Asset Relief Program) funding or under Section 13 of the Federal Reserve Act (covered funding). TARP funding is part of the Employ American Workers Act (EAWA) which was signed into law on February 17, 2009. While this funding is by its nature focused on financial institutions, all employers are required to respond to the following question on each H-1B/H-1B1 filing:

Has the petitioner received TARP funding?: YES or NO

Since the new form was just implemented, the USCIS will continue to accept the older versions of the form. While USCIS is working with the Department of the Treasury to ascertain which employers have received TARP funding, USCIS officials have indicated that H-1B petitions using the old form nay be subject to requests for evidence in order to resolve this question. As the new form starts to come into use, petitioners will be expected to squarely respond to this question.

Under EAWA, any company that receives covered funding and seeks to hire new H-1B workers is considered an "H-1B dependent employer." H-1B dependent employers must make additional attestations to the U.S. Department of Labor when filing the Labor Condition Application which is the first step in the H-1B/H-1B1 petition filing. The additional attestations include recruitment elements. Further, employees are not exempted for having a Master's degree or having a salary above $60,000 per annum.

An "H-1B dependent employer" must make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (LCA):

• It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
• It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
• It has not "displaced" any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and
• It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.

EAWA does not apply to H-1B petitions that are seeking to change the status of a beneficiary who is already working for you in another classification. For example, if you have an F-1 employee on an EAD who began working prior to February 17, 2009, and you are filing a change of status H-1B visa petition, EAWA does not apply. EAWA will sunset (expire) on February 17, 2011.

Companies that have not received TARP funding will not be subject to any additional requirements to file H-1B petitions. The US Treasury Department is maintaining list of institutions receiving TARP funding, to which the USCIS will refer when adjudicating new H-1B petitions. We are also reviewing this list for each of our employer clients. If you have reason to believe your company is receiving TARP funding and you file H-1B visa petitions with our office, please notify us.

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