In February 2009, the Employ American Workers Act (EAWA) was enacted. The EAWA makes companies that have received funding under the Trouble Asset Relief Program (TARP) or Section 13 of the Federal Reserve Act H-1B dependent employers. Unlike other H-1B dependent employers, companies that are subject to EAWA are not exempt from the additional H-1B dependent employer requirements by hiring an exempt H-1B nonimmigrant. These additional H-1B dependent requirements include attesting to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA).
Many companies that were subject to EAWA decided not to hire H-1B nonimmigrants due to the EAWA restrictions. However, over the past year, some of these companies have repaid the funding that they received through the TARP program. Although they repaid the funding, there was uncertainty as to whether they were still subject to the EAWA restrictions. The U.S. Citizenship and Immigration Services (USCIS) recently confirmed that if a company that received TARP funding fully repays the funding, the company is not subject to the EAWA restrictions and does not have to indicate on an H-1B petition that it is subject to these restrictions. With this clarification, many companies that have repaid their TARP funding may now resume considering H-1B nonimmigrants for their available positions.