U.S. Citizenship and Immigration Services (USCIS) has provided detailed information regarding the Employ American Workers Act (EAWA) and H1-B petitions.
On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act (commonly known as the “stimulus bill”). The stimulus bill contained the Employ American Workers Act (“EAWA”).
EAWA took effect on February 17, 2009 and will expire on February 17, 2011. EAWA prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received funds through the Troubled Asset Relief Program (TARP), or under section 13 of the Federal Reserve Act (collectively referred to as “covered funding”).
EAWA affects the current Labor Condition Application (LCA) process administered by Department of Labor (DOL) and the USCIS petition process for companies seeking H-1B workers. Companies subject to EAWA will now need to make new statements regarding recruitment and hiring of U.S. workers.
Under EAWA, any company that received covered funding and seeks to hire H-1B workers is considered to be an “H-1B dependent employer.”
H-1B Dependent Employer
An H-1B dependent employer must make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (LCA):
- The employer has taken or will take good faith steps meeting industry-wide standards to recruit U.S. and will offer compensation that is at least as great as those offered to the H-1B nonimmigrant. U.S. workers are 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);
- The employer has offered or will offer the job to any U.S. worker who applied and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
- The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by this application. 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
- The employer 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.
Affected U.S. Companies
USCIS is working with the Department of the Treasury, the Federal Reserve and other relevant agencies to identify companies that have received covered funding. USCIS, however, expects companies seeking to hire H-1B workers to know whether or not they have received covered funding and act accordingly with respect to hiring an H-1B nonimmigrant. In this regard, USCISnotes that:
- EAWA only applies to U.S. companies that received covered funding and want to hire new H-1B workers; and
- The normal exception to the H-1B dependent employer requirements that an H-1B nonimmigrant is exempt from the dependency calculation if the individual earns a salary of at least $60,000 or has a master’s degree or higher is not applicable to companies that have received covered funding.
An H-1B nonimmigrant is a foreign national who comes to the United States temporarily to work in a specialty occupation. A specialty occupation position is one that generally requires a bachelor’s degree or higher and specialized knowledge.
How EAWA Applies to H-1B Hires
EAWA applies to any “hire” taking place on or after February 17, 2009, and before February 17, 2011. EAWA defines “hire” as an employer permitting a new employee to commence a period of employment; that is, the introduction of a new employee to the employer’s U.S. workforce.
EAWA applies to:
- Any LCA or petition filed on or after February 17, 2009 involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status; and
- New employment (hires) based on a petition approved before February 17, 2009, if the H-1B employee had not actually commenced employment before that date.
EAWA does not apply to:
- A petition to extend the H-1B status of a current employee with the same employer; or
- A petition seeking to change the status of a current U.S. work-authorized employee to H-1B status with the same employer.
If You Are Filing an H-1B Petition
USCIS advises employers to comply with the following in order to avoid processing delays:
- Use a version of Form I-129, Petition for a Nonimmigrant Worker, with a revision date of March 11, 2009 or later and ensure that you properly answer Question A.1.d on the H-1B Data Collection and Filing Fee Exemption Supplement, or
- Submit page 13 of Form I-129 with a revision date of March 11, 2009 or later and answer Question A.1.d. if you are using a version of Form I-129 with a revision date earlier than March 11, 2009.
If You Have Repaid Covered Funding
USCIS states that they understand that some employers who received covered funding may have subsequently repaid their obligations.
- Employers who have repaid their obligations should answer “no” to Question A.1.d. on the H-1B Data Collection and Filing Fee Exemption Supplement.
- If an employer wishes to provide further information with the petition to assist USCIS in determining that its statement regarding its status for purposes of EAWA is correct, it may do so.
For information on whether covered funding obligations have been repaid, recipients of TARP funding should seek guidance from the Department of Treasury, or the Federal Reserve.
Please Note: Processing delays or a denial of the H-1B petition may result if the LCA statements do not correspond with the H-1B petition, unless any inconsistency is explained in the petition.
For example, if the LCA includes the additional statements, but Question A.1.d is answered “no,” the employer can explain that it had received covered funding at the time of filing the LCA but repaid the obligation before filing the Petition for Nonimmigrant Worker, (Form I-129).
However, if the employer indicates on its petition that it received covered funding, but the LCA does not contain the proper statements relating to H-1B dependent employers, the H-1B petition will be denied.
If you are an employer or employee requiring assistance in compliance with the Employ American Workers Act throughout the H-1B process, please contact us to schedule your initial consultation with an experienced immigration attorney today. Our immigration lawyers represent clients throughout Virginia, Maryland and the District of Columbia.