USCIS Announces New Requirements' for TARP Funding Recipients Hiring of H-1B Foreign Workers

On March 20, 2009, the U.S. Citizenship and Immigration Services (USCIS) announced additional requirements for certain employers desiring to sponsor foreign workers for H-1B nonimmigrant status. The changes apply to companies in receipt of Troubled Asset Relief Program (TARP) funding. The new Employ American Workers Act (EAWA) was signed into law by the President on February 17, 2009 as part of the American Recovery and Reinvestment Act. The EAWA requires companies receiving covered funding to confirm that they are not displacing U.S. workers with foreign workers. Such employers will now be considered an “H-1B-dependent employers” subject to additional attestations to the U.S. Department of Labor when filing the Labor Condition Application (LCA) as part of the H-1B petition process.

The required attestations for subject employers include the following: (1) that it has taken good faith steps to recruit U.S. workers using industry-wide standards and offering compensation that is at least as great as that offered to the H-1B worker; (2) that it has offered the job to any U.S. worker who applies and is equally or better qualified for the job intended for the H-1B worker; (3) that it has not displaced (laid off from an equivalent job) 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 the filing; (4) that 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 new requirements apply to all H-1B petitions filed for new hires by covered employers on or after February 17, 2009 (for new petitions and change of employer petitions alike). The requirements will not, however, apply to an H-1B petition filed for a worker already working for that employer in another nonimmigrant category and merely seeking a change in nonimmigrant classification from that other category to H-1B. The USCIS is also revising its H-1B petition forms to provide for identification of EAWA-subject employers. The EAWA is scheduled to sunset two years from its date of enactment.