Shortly after we published our last post on January 29, entitled, “Is it Time for an End to the H-1B Protectionist Restrictions Applicable To TARP Recipients?”, USCIS issued guidance on precisely the issue that the post raised; that is, “whether the companies who received TARP funds, but have since repaid them to the government, are still restricted by the H-1B dependent rules?” It would be a bit presumptuous on our part to surmise that USCIS policymakers are readers of this blog -- it’s much more likely that this guidance was issued in anticipation of the impending H-1B filing season rapidly approaching on April 1.
Either way, in response to our inquiry of whether the companies who received TARP funds, but have since repaid them, are still restricted by the H-1B dependent rules, here is your answer, by way of USCIS guidance issued on February 4:
"USCIS understands that some businesses who received covered [TARP] funding may have subsequently repaid their obligations and may not know how to respond to Question A.1.d. [of the H-1B Data Collection and Filing Fee Exemption Supplement]. If you have repaid your obligations, then answer “No” to Question A.1.d. If you wish to provide further information with the petition to assist USCIS in determining that your status for purposes of EAWA is correct, you may do so."
To date, the following major banking institutions have repaid TARP and are thus freed from mandatory compliance with the filing requirements of that of an “H-1B dependent” employer, as defined by INA 212(n)(3): JPMorgan Chase & Co., Morgan Stanley, Goldman Sachs Group Inc., US Bancorp, Capital One Financial Corp., State Street Corp., American Express Co., BB&T Corp., Bank of New York Mellon Corp., and Northern Trust Corp.
If you are an institution that received funding under the Troubled Asset Relief Program (“TARP”) or Section 13 of the Federal Reserve Act, and have not yet repaid those obligations, this is a reminder that the H-1B restrictions under the Employ American Workers Act (“EAWA”) apply only to new hires and not to H-1B petitions seeking to change the status of a beneficiary working for the petitioning employer in another work-authorized category. The restrictions also do not apply to H-1B petitions seeking an extension of H-1B status for a current employee to continue working for the same employer.
For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's "Corporate Immigration Law News" Blog.
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
