USCIS to Accept H-1B Petitions for FY 2010 Beginning April 1, 2009
Petitioners Are Reminded to Follow Regulatory Requirements

The United States Citizenship and Immigration Service (USCIS) has announced additional requirements for employers who received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act before they may sponsor an H1B for a foreign national.

BACKGROUND: On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act (AARA).  Section 1611 of AARA, entitled the “Employ American Workers Act” (EAWA), was added to the bill by Senator Bernie Sanders of Vermont and Senator Charles Grassley of Iowa.  EAWA requires employers who are recipients of TARP funding or any federal loans under Section 13 of the Federal Reserve Act to make the following attestations prior to hiring any new H1B employee:

(1)                That the employer took good faith steps to recruit U.S. workers for the job for which an H-1B nonimmigrant is sought and that the job was offered to any U.S. worker who applied and who was equally or better qualified than the H-1B nonimmigrant.

(2)                That the H-1B worker did not displace a U.S. worker in an essentially equivalent job during a period starting 90 days before the filing of an H-1B petition and ending 90 days after an H-1B petition was filed, either at the employer’s own worksite or at any outside worksite where the employer has placed an H-1B worker. 

These attestation requirements are similar to those already in place for H1B dependent employers.  However, unlike the H1B dependent requirements, under EAWA, there are no such exemptions for foreign national beneficiaries who possess a Masters degree or higher or who will be paid at least $60,000 per year.  The Department of Labor (DOL) has already posted new instructions on its Labor Condition Application (LCA) website that instruct EAWA-subject employers on how to complete the LCA attestations regarding recruitment and displacement.

EAWA will be effective for a two year period from the signing date of February 17, 2009.  Thus, it will sunset February 16, 2011.

USCIS CLARIFIES QUESTIONS ON EAWA:               The broad language of EAWA has resulted in numerous questions as to the application and implementation of EAWA.  In a recent USCIS FAQ, USCIS clarified some of these outstanding questions.

• To Which H1B Hires Does EAWA Apply?:             EAWA Applies to any “hire” taking place after February 17, 2009 and before February 17, 2011.  EAWA defines “hire” to mean permitting a new employee to commence a period of employment.  Per USCIS, this means the introduction of a new employee to the employer’s United States workforce. 
  
  
  
  • EAWA Applies to:
    
    
    
    • Any LCA or H1B 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 H1B status.  As such, EAWA does apply to H1B Change of Employer petitions.
      
    • New employment (ie:  hires) based on a petition approved before February 17, 2009, if the H1B worker had not actually commenced employment before that date.

• Do the EAWA Requirements Apply to H1B Extension filings for Existing H1B employees?:  No.  EAWA Applies to any “hire” taking place after February 17, 2009 and before February 17, 2011.  EAWA defines “hire” to mean permitting a new employee to commence a period of employment.  Per USCIS, this means the introduction of a new employee to the employer’s United States workforce.

• Do the EAWA Requirements Apply to H1B Change of Status petitions for Existing Employees who are in another Nonimmigrant Status?: No.  As stated above, EAWA Applies to any “hire” taking place after February 17, 2009 and before February 17, 2011.  EAWA defines “hire” to mean permitting a new employee to commence a period of employment.  Per USCIS, this means the introduction of a new employee to the employer’s United States workforce.  As such, EAWA does not apply to H1B petitions for employees currently employed in another status (ie:  F-1, TN, L-1, O-1, etc). 

• Do the EAWA Requirements Apply to H1B Change of Employer petitions?:         Yes.  EAWA applies to any LCA or H1B 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 H1B status.  As such, EAWA does apply to H1B Change of Employer petitions.

• How is USCIS Implementing EAWA?:     Companies subject to EAWA will now need to make new statements regarding recruitment and hiring of U.S. workers on Department of Labor (DOL) Labor Condition Applications (LCAs) filed in support of H1B petitions.  A valid LCA must be on file with the DOL at the time the H1B petition is filed with the USCIS.  As such, if a petitioner indicates on Form I-129 that it is subject to EAWA, but the LCA does not contain the proper attestations relating to recruitment and hiring of U.S. workers, the H1B petition will be denied.

USCIS has also revised Form I-129 Petition for Nonimmigrant Worker to include a question asking whether the petitioner received covered funding.  USCIS realizes that some employers may have already prepared petitions for mailing in anticipation of the FY2010 H1B Cap using the prior edition of the form and is thus not requiring the use of the revised form for the FY2010 H1B Cap filings.  HOWEVER, H1B employers should include the page on the revised form which has the new question on the EAWA attestation requirements and file this single page with the prepared H1B package. 

CORPORATE CLIENTS WHO RECEIVE FUNDING UNDER TARP OR FEDERAL RESERVE ACT SHOULD NOTIFY YOUNOSSI LAW:                To ensure that accurate attestations are being made on Labor Condition Applications and H1B petition filings, prior to filing H1B petitions, corporate clients are advised to verify with their corporate finance or legal departments as to whether there has been receipt of any such funds. 

It is important that corporate clients hiring and sponsoring beneficiaries for H1B status be aware of whether their company has received any funding that would trigger the provisions of EAWA.  Although EAWA-subject employers are mostly to financial institutions or similar organizations, it is possible that the rollout of the federal programs to be introduced under Stimulus Bill may make it possible for other employers to receive such funding in the coming months.  Please do keep Younossi Law apprised of the receipt of any such funding so that accurate assessments can be made as to the applicability of EAWA provisions and the impact (if any) on your H1B hiring.

Should you have questions regarding this Immigration Report, please contact the immigration professional with whom you usually work at Younossi Law.