Question: Congress approved an H-1B amendment to the stimulus bill that severely restricts H-1Bs from being hired by banks that receive federal funds - basically most major banks. Does this also affect TN visas?

Reply: The House of Representatives approved the American Recovery and Reinvestment Act of 2009 (H.R.1), also known as the Stimulus Bill, on February 12, 2009. The House version does limit the issuance of H-1B visas to certain businesses unless specific requirements are met. The rule applies only to H-1B visas, and not to any other non-immigrant category such as TN, E, or L-1 visas.

Section 1611 of the Stimulus Bill limits the issuance of H-1B visas to any business that receives funding under Title I of the Emergency Economic Stabilization Act of 2008 (i.e. TARP) or under Section 13 of the Federal Reserve Act[1] unless the business satisfies the H-1B requirements for “dependent employers.”

H-1B dependent employers:

1. Cannot displace any U.S. worker within 90 days before and ending 90 days after the filing of any H-1B visa petition.

2. Cannot place an H-1B worker at any other employer worksite when an employment relationship exists between the two companies, unless the petitioning employer knows that the other company will not displace a U.S. worker within the period beginning 90 days after the date of the H-1B worker’s placement at the second worksite.

3. Must take good faith efforts to recruit U.S. workers based on industry wide standards and at compensation at least equal to that offered to the H-1B worker.

4. Must offer the position to any U.S. worker who is equally or more qualified than the H-1B worker. 20 CFR § 655.738.

Under INA § 212 (n) (E) (ii), an exemption to the non-displacement and recruitment rules exists for certain H-1B workers paid at least $60,000 annual salary or who possess a master’s degree or equivalent. This exemption, however, does not apply to the Stimulus Bill provisions.

[1] E.g. Section 13 (3) of the Federal Reserve Act authorizes the Federal Reserve Board to make secured loans to individuals, partnerships, or corporations in “unusual and exigent circumstances” and when the borrower is “unable to secure adequate credit accommodations from other banking institutions.”