More Clarifications on H-1B for TARP Companies

USCIS has released a memorandum, dated March 20, 2009, which provides additional clarifications about H-1B sponsorship by companies which are recipients of TARP funds.  We have written extensively about these restrictions earlier this year but there were still questions outstanding.  This USCIS guidance should provide final clarify on the subject.

The restrictions apply to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

However, one of the main questions after the Stimulus Bill passed was whether the new rule would apply for existing H-1B holders at TARP companies.  The USCIS memorandum makes it clear that  the restrictions do not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.