The U.S. Senate agreed on Friday to set restrictions on the hiring of H-1B workers by financial services firms that receive federal bailout funds, but it didn't bar the hiring of foreign workers as proponents had sought.

U.S. Sens. Bernie Sanders (I-Vt.) and Chuck Grassley (R-Iowa) had proposed legislation this week to prohibit any firm that received money under the Troubled Assets Relief Program (TARP) from hiring foreign workers.

The amendment, part of the stimulus plan being debated in the Senate, didn't include a blanket restriction on H-1B use and instead set a series of strict standards on H-1B hiring.

The Senate's amendment would require companies receiving TARP funds, mostly financial services firms with a lot of bad mortgages, to comply with hiring rules set for "H-1B dependent" firms -- those with more than 15% of their workers on H-1B visas.

Any firm receiving TARP funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

The H-1B dependent designation subjects employers to a number of provisions, including a good faith effort to hire U.S. workers first.

Sen. Grassley said in a statement late Friday that the modified bill means companies receiving TARP funds would still be able to hire H-1B visa holders, but would have to comply with the "H-1B dependent"-employer rules "which include attesting to actively recruiting American workers; not displacing American workers with H-1B visa holders; and not replacing laid off American workers with foreign workers."

"Hiring American workers for limited available jobs should be a top priority for businesses taking taxpayer money through the TARP bailout program," Sen. Grassley said.

"With the unemployment rate at 7.6 percent, there is no need for companies to hire foreign guest workers through the H1-B program when there are plenty of qualified Americans looking for jobs," Sen. Grassley said.

Both Sen. Grassley and Sen. Sanders argue that U.S. firms have a moral obligation to protect U.S. workers' jobs.

This amendment may be tougher than the existing law. There are now exceptions to the H-1B dependency rule for foreign workers who are paid at least $60,000 in base wages or who have advanced degrees -- but those exceptions don't appear in the amendment. It is thus believed that the companies affected by this proposed law would be unlikely to hire H-1B workers.

The fate of this H-1B amendment rests on the fate of the stimulus bill before the Senate today, and if that's approved it will head to a conference where other changes are possible.

• April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the "final receipt date." If the "final receipt date" falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days.



• USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject. If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.



• Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

• Extend the amount of time a current H-1B worker may remain in the United States;



• Change the terms of employment for current H-1B workers;



• Allow current H-1B workers to change from one cap-subject position to a different cap-subject position with a different employer; or



• Allow current H-1B workers to work concurrently in a second H-1B position.

1. Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following
   
   codes:
   
   
   
   • Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
     
     
   • C/S Cap (Chile/Singapore H-1B1s)
     
     
   • U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
     
     
   • Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)
     
     
2. Fill out Form I-129 and supplements correctly, consistently and completely.
   
   
   
   • Form I-129 petition
     
     
   • H classification supplement
     
     
   • H-1B Data Collection and Filing Fee Exemption Supplement
     
     
   • Original signatures are required. Tip: blue ink makes it easy to confirm an original.
     
     
3. Employer must submit the correct fees as seen on form instructions (Tip: separate checks for each are best).




Base filing fee $320 American Competitiveness and Workforce Improvement Act of 1998 (ACWIA fee) $750 For employers with 1 to 25 full time equivalent employees unless exempt $1,500 For employers with 26 or more full time equivalent employees unless exempt (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B) Fraud fee $500 To be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner. (Not for Chile/Singapore H-1B1 cases) Premium Processing fee $1,000 For employers seeking Premium Processing Service



4. Please send only one petition per envelope. (These may then be mailed together in one mailing package.)
   
   
   
   • Regular Cap
     
     
   • U.S. Master’s Cap
     
     
   • Regular Cap Premium Processing
     
     
   • U.S. Master’s Cap Premium Processing
     
     
   • H-1B1 Chile/Singapore

• Please double check the petition to make sure you have answered all the questions and that the answers are consistent and correct throughout the entire package, including the petition and all accompanying documentation. USCIS cannot make assumptions about what a petitioner really intended, if that is not clear on the face of the documents submitted.
  
  
• For example, if you check "yes" to the question of whether the beneficiary has a U.S. Master's degree in Part A, #5 of the supplement, then Part C, #7 should also be checked "yes."
  
  
• Another common mistake is where the petitioner indicates on one part of the Form I-129 that the beneficiary is not subject to the cap, but on top of the petition they may write "Regular Cap." This can also delay processing of a case or even cause it to be rejected.