Much has been said about the American Recovery and Reinvestment Act (ARRA), popularly referred to as the stimulus bill, or the bailout.What you may not know is that as part of that legislation, Congress also enacted the Employ AmericanWorkers Act (EAWA), which provides that those specific entities receiving funds under the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act, are now deemed to be H-1B-dependent employers. These employers are subject to certain recruitment and lay-off provisions, as explained below.
Very briefly, an H-1B-dependent employer is prohibited from hiring an H-1B worker unless, prior to filing the H-1B petition, it has engaged in good faith recruitment to find a U.S. worker for the position at a compensation level and under procedures consistent with “industry-wide standards.” The employer must offer the job to any equally or better qualified U.S. worker who applies. (This is unlike the recruitment standard in the permanent labor certification process, which mandates that the employer recruit from the pool of minimally qualified applicants.)
An H-1B-dependent employer must also attest that it has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to filing the H-1B petition and ending 90 days after its filing.
The EAWA defines the term “hire” to mean permitting “a new employee” to start a period of employment. Under guidance issued on March 20, 2009, the USCIS clarified that the dependency rules do not apply to H-1B petitions seeking an extension of stay or change of status for a current employee with the same employer.