Feb 6 2010

USCIS Issues Additional Guidance Regarding EAWA to Employers Filing H-1B Petitions

Earlier this week USCIS published additional guidance regarding the Employ American Workers Act (EAWA) for employers wishing to file H-1B petitions on behalf of skilled workers. EAWA was passed to make sure that companies that received federal funds under the Troubled Asset Relief Program (TARP) (or section 13 under the Federal Reserve Act) did not engage in hiring that would displace U.S. workers. Under EAWA, companies that received federal funding and wish to hire a new H-1B worker are categorized as “H-1B dependent employers,” and must make additional statements to the U.S. Department of Labor regarding their attempts to recruit U.S. workers in their Labor Certification Applications.

After the enactment of EAWA, USCIS revised Form I-129, the Petition for Nonimmigrant Worker, to include a question specifically asking employers if they received funding from TARP or section 13 of the Federal Reserve Act.

It should be noted that EAWA only applies to new H-1B hires and not to H-1B petitions for the changing of status of an employee currently working for an employer under another visa category. Additionally, EAWA does not apply to H-1B petitions seeking extensions of H-1B status for an employee to continue working for the same employer.