H-1B Visa
Stimulus Package and Filing Deadline Reminder

Economic Stimulus Package Imposes Additional Obligations on Certain Employers Hiring New H-1B Workers

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act, known as the stimulus bill, into law, which includes language that places additional obligations on H-1B employers receiving funding under the Troubled Asset Relief Program (TARP) or under Section 13 of the Federal Reserve Act (authorizing the Federal Reserve's "Discount Window" for short-term, secured loans to financial institutions and other companies).

Effective immediately, the stimulus bill makes it unlawful for recipients of such funding to hire a new H-1B worker unless the company complies with certain conditions previously imposed exclusively on "H-1B dependent employers." By making such employers subject to the "H-1B dependent" requirements, the stimulus bill requires employers who sponsor a new H-1B visa to demonstrate that, among other things, the employer will not displace any similarly employed U.S. worker in the 90 days prior or 90 days after the filing of an H-1B petition; the employer will not place the H-1B worker with another employer to fill the position of a displaced U.S. worker (i.e. on contract); and the employer has taken good-faith steps to actively recruit U.S. workers, including offering the job to any U.S. worker who applies and is equally or better qualified for the position.

In addition, the term "hire" is defined in the stimulus bill as permitting "a new employee to commence a period of employment." Therefore, these conditions do not appear to apply to H-1B extension petitions filed on behalf of current H-1B employees or may not apply to H-1B change of status petitions filed on behalf of employees currently working for the employer pursuant to another nonimmigrant status (i.e. F-1 [OPT], J-1, TN, etc.). CIS has indicated additional guidance on these types of filings will be forthcoming. The stimulus bill includes a two-year sunset provision, with termination on February 16, 2011, unless further legislative action is taken.

Deadline Approaching for FY2010 H-1B Filings

As a reminder, on April 1, 2009, Citizenship and Immigration Services (CIS, formerly INS) will begin accepting H-1B temporary worker petitions for the 2010 Fiscal Year. If approved, H-1B status would become effective October 1, 2009.

On the first date of eligible filing for the past two years, CIS has received more than twice the annual number of applications made available for H-1B workers and implemented a lottery system to randomly select cases for processing. A similar result is anticipated this year.

The H-1B annual quota applies to foreign nationals who do not presently hold H-1B status, including recent graduates who are working during their one year of "Optional Practical Training." For H-1B workers who already have been counted against the annual H-1B quota, this cap does not apply to filings on their behalf, such as requests for extensions of stay or changes in employer sponsor. Certain types of employers are also exempt from the H-1B annual quota, including institutions of higher education and related or affiliated non-profit entities (such as hospitals), and non-profit or government research organizations.

The H-1B visa category is the most common classification available to foreign professionals working in the United States. The employer is obligated to pay the H-1B worker a minimum prevailing wage for the offered position and the category is only available for professional level employment which typically requires a minimum of baccalaureate level education. This classification is widely utilized by U.S. companies on behalf of foreign engineers, IT professionals, physicians, professors, managers and other professionals and is often the only available option for temporary employment in the U.S.

Please contact Jenifer Brown or another member of the immigration group if you have any questions regarding hiring H-1B workers.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.