Even Symbolic H-1B Curbs Provoke Employer Outcry

The latest chapter in the Alice in Wonderland story of the H-1B visa program for cheap foreign labor surrounds provisions applied to employers receiving money from the Troubled Assets Recovery Program ("TARP").

The new rules apply what are known as the "H-1B Dependent" provisions of the H-1B program to TARP fund recipients. While largely symbolic, these provisions have provoked a response in the media that has been hysterical ("Protectionism," "closing the job market to highly skilled workers," "anti-free market," and "turning away talent").

Reality check. Look at the list of the top users of H-1B visas. The top is dominated by foreign companies that bring in hundreds, even thousands, of H-1B computer workers each year but who do not hire Americans for these positions. The H-1B Dependent provisions do not hinder them in the least.

There are two new "restrictions" on TARP fund recipients:

1. The employer must certify that it did not or will not hire an H-1B worker if it has laid off a U.S. worker in a job that involves essentially the same responsibilities and is located in the same geographic area of employment within 90 days. 8 U.S.C. § 1182(n)(1)(E)(i), (n)(4)(A)-(B).

2. The employer must certify that it has recruited U.S. workers for the position and offered the job to any U.S. worker who is equally or better qualified. 8 U.S.C. § 1182(n)(1)(G).

(There is actually a third provision under 8 U.S.C. § 1182(n)(1)(F), but it is unlikely to ever be applicable to a TARP recipient).

The TARP fund recipient must certify, not prove, these additional conditions.

What does that mean in practice?

TARP fund recipients must check YES on box F-1.2 on the Labor Condition Application.

Yes, all the fuss about onerous restrictions on TARP funds boils down to having to check a different box on a form.

But what about the threat of being saddled with lawsuits?

There is no cause of action to bring a lawsuit under these provisions.