Due to the passage of the Employ American Worker Act (EAWA), the USCIS is required to collect Troubled Assets Relief Program (TARP) information on each H-1B petitioning employer. Under the EAWA legislation, any company that has received TARP funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” An H-1B dependent employer must make additional statements to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA).
After enactment of EAWA, USCIS revised its Form I-129, Petition for Non-immigrant Worker, to include a question asking whether the employer has received TARP funding.
It has come to the attention of the USCIS that some businesses who have received TARP funds may have repaid their obligations and may not know how to proceed with completing Form I-129 when filing for new H-1B hires.
• If you received TARP funds and have repaid your obligations, then answer “NO” to the question regarding TARP funding on Form I-129. If you wish to provide further information on the repayment of your obligations, you may do so and include that information with the H-1B petition.
• If you received TARP funds and have not repaid your obligations, then you must answer “YES” to the question regarding TARP funding, and must provide the additional statements regarding recruitment and non-displacement of U.S. workers on the LCA.
• If you submitted an LCA which includes the additional statements, but answer “NO” to the TARP funding question on Form I-129, you may explain the circumstances of the inconsistency of your answers. For instance, you received TARP funding at the time of filing the LCA but repaid the obligation before filing Form I-129.
Please be aware that if you indicate on the petition that you are subject to TARP funding, but the LCA does not contain the proper additional statements relating to H-1B dependent employers, USCIS has advised that they will deny the H-1B petition.
As immigration law is already complex is nature, it is important to have an attorney experienced in the field, who is ready and willing to advise when changes occur. Contact MVP Law Group if you have any further questions regarding EAWA, and its effect on your company.