On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category.

These new requirements were established by the Employ American Workers Act (EAWA), a component of the American Recovery and Reinvestment Act (ARRA) – otherwise known as the stimulus package – signed into law on February 17, 2009. Under EAWA, companies receiving covered funds must guarantee that they will not displace citizen employees. If they seek to hire employees under the H-1B visa program, they are considered “H-1B dependent employers” that must make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (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 EAWA applies to any LCA and/or H-1B petition filed on or after February 17, 2009 involving any employment by a new employer. Petitions covered by this Act include those filed for new hires whose petitions were approved before this date, but did not start employment until after February 17. The EAW does not apply to petitions to change the status of a foreign worker already working for the employer in another work-authorized category, nor to those seeking an extension of stay for a current employee for the same employer.

The USCIS is revising Form I-129, Petition for Nonimmigrant Worker to include a question asking whether the petition seeker is a recipient of covered funds. This form will be available prior to April 1, 2009, when the agency will begin accepting H-1B petitions subject to the fiscal year 2010 cap.