EAWA and its effect upon H-1B petitions (TARP RECIPENTS)

Posted On: March 23, 2009

The United States Citizenship and Immigration Service (USCIS) recently released some guidance regarding the Stimulus Bill, which contains the “Employ American Worker Act” (EAWA) and its effect upon the H-1B visa petition.

If the company was a recipient of the funds distributed through the Trouble Asset Relief Program (TARP), EAWA prevents an employer from displacing qualified U.S. workers when participating in the H-1B visa program. Under EAWA a company is considered an “H-1B dependent employer” and must make additional attestations to the Department of Labor (DOL) when filing the Labor Condition Application (LCA).

According to the guidance distributed by the USCIS, employers must attest to the following additional requirements on the LCA:
• It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
• It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
• It has not “displaced” any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and
• It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.

The USCIS stated that companies who received TARP funds should know who they are and should act accordingly when filing an H-1B nonimmigrant visa petition. Meaning they should comply fully with the new limitations on hiring skilled foreign workers. USCIS is working with the Department of Treasury to identify all recipients of TARP funds.

EAWA applies to all H-1B petitions filed on or after February 17, 2009. EAWA does not apply to H-1B extensions of stay with the same employer or to those changing status from some other authorized work status to that of H-1B.

In response to EAWA, the USCIS has redesigned Form I-129, H-1B Data Collection Supplement, to include a section on EAWA attestation requirements. (page 13 of Form I-129) Although it is short notice to those employers who already have H-1B FY 2010 petitions packaged for filing, the USCIS stressed the importance of utilizing the updated form for filing H-1B visa petitions for FY 2010. They advised that if Form I-129 indicates that the petitioner is subject to EAWA and the LCA does not contain the requisite attestations, then the petition will be denied.

As immigration law is already complex is nature, it is important to have an attorney experienced in the field, who is ready and willing to help when changes occur. Contact the MVP Law Group if you have any further questions regarding EAWA and its effect on your company.