Many Cap-subject H-1Bs To Receive RFE

Due to the passage of Employ American Workers Act (EAWA), as part of the Stimulus Bill, USCIS is required to collect TARP (and Section 13 funding) information on each H-1B petitioner.  However, by the time the new form became available, many practitioners had already completed their packages for the H-1B cap filing period for April 1, 2009.  Therefore, USCIS confirmed that the new I-129 form was not mandatory and that only the one page (of the I-129 Data collection sheet requesting the TARP information) was urged to be included.

USCIS has recently confirmed that if the TARP information was not included in the original cap-subject filing, the petitions would not be rejected.  However, USCIS would need to send a Request For Evidence (RFE) for the TARP information (page 13 of the I-129 Form).  Since USCIS is required under the EAWA statute to obtain this information and the easiest way for USCIS to comply is to send an RFE.

As a result, all H-1B applications which were filed after April 1, 2009, will be reviewed to make sure that Page 13 of Form I-129 inludes a response to the TARP question.   Applications which were prepared before the new I-129 Form came out (and as a result do not have the TARP question on page 13 of Form I-129) are expected to be issued an RFE requesting an updated Page 13 to be submitted.