The U.S. Citizenship and Immigration Services (USCIS) recently provided guidance about the implementation of the Employ American Workers Act (EAWA) which was enacted as part of the American Recovery Reinvestment Act on February 17, 2009. EAWA makes employers who have received funds through the Trouble Asset Relief Program (TARP) or under Section 13 of the Federal Reserve Act H-1B dependent employers. EAWA also makes the exemption for H-1B nonimmigrants who have either earned a Master’s or higher degree or are offered a salary of $60,000 or more inapplicable to these institutions. A list of TARP recipients is available at http://www.treas.gov/initiatives/eesa/transactions.shtml, http://online.wsj.com/public/resources/documents/st_BANKMONEY_20081027.html or http://projects.nytimes.com/creditcrisis/recipients/table. The Federal Reserve has not released a list of the Section 13 recipients. Additional information about EAWA is contained in our firm’s previous Immigration Update dated February 16, 2009.
After EAWA was enacted, the U.S. Department of Labor (DOL) placed a notice on its website that this provision applied to all new employment on or after February 17, 2009 by institutions who have received TARP or Federal Reserve credit window funding. However, the USCIS has now provided additional guidance about when EAWA applies. USCIS stated that EAWA applies to any Labor Condition Application (LCA) and/or H-1B 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 H-1B status. USCIS stated that EAWA also applies to new hires based on an H-1B petition approved before February 17, 2009 if the H-1B employee had not actually commenced employment before that date. The USCIS also stated that EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. Although the USCIS did not provide examples of other work-authorized categories, these could include employees employed by these institutions pursuant to Optional Practical Training or TN status, to name a few. The USCIS also stated that EAWA does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.
The USCIS has modified its H-1B Data Collection Form to request information about whether an employer has received TARP funding. However, the USCIS has not modified the form to further request if the employer is subject to the additional EAWA requirements by petitioning for a specific Beneficiary. Therefore, TARP institutions that are filing H-1B petitions for beneficiaries who do not make the institution subject to the additional EAWA requirements should clearly explain how the filing of the petition on behalf of the specific beneficiary does not make them subject to the additional requirements. The USCIS has warned that TARP employers that are subject to the EAWA requirements and that do not properly attest on the LCA that they are H-1B dependent employers and have complied with the additional attestations required of H-1B dependant employers will have their H-1B petitions denied by the USCIS.
The additional EAWA requirements remain effective for employers who have received TARP funds through February 17, 2011. Neither EAWA nor the USCIS guidance clarifies whether an institution that repays the TARP funds prior to February 17, 2011 will still be subject to the additional EAWA requirements.