Employ American Workers Act (EAWA) and H-1B Petitions

Overview:

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act (commonly known as the “stimulus bill”), Public Law 111-5. The stimulus bill contained the Employ American Workers Act (“EAWA”), Pub. L. 111-5, Div. A, Title XVI, § 1611.
EAWA took effect on Feb. 17, 2009 and will expire on Feb. 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), Pub. L. 110-343, Div. A, Title I, or under section 13 of the Federal Reserve Act (collectively referred to “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
  • 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.

See the link to the right to the Department of Labor Web Site.

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.

  • EAWA only applies to U.S. companies that received covered funding and want to hire new H-1B workers.
  • 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.

H-1B Nonimmigrant

  • 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.

For more information please see the link to the left for H-1B Specialty Occupations under Temporary Workers.

How EAWA Applies to H-1B Hires

EAWA applies to any “hire” taking place on or after Feb. 17, 2009, and before Feb. 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 Feb. 17, 2009 involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status.
  • New employment (hires) based on a petition approved before Feb. 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.
  • 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

Please 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 understands 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, by seeing the links to the right.

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.

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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).