February 12, 2010
On February 4, 2010, the Immigration Service provided additional guidance regarding the Employ American Workers Act (EAWA) to employers filing H-1B petitions. EAWA was enacted on February 17, 2009 to ensure that U.S. workers would not be displaced by companies that received funding under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act (FRA). EAWA imposed H-1B dependent employer hiring restrictions on companies that received the covered TARP/FRA Section 13 funds. These EAWA restrictions pertained only to new hires initially beginning employment in H-1B classification. The requirements went into effect on February 17, 2009 and will last two years, through February 16, 2011.
The Immigration Service has provided detailed guidance regarding how employers who received TARP/Section 13 FRA funds should complete their H-1B petitions. Following the enactment of EAWA, a question was added to the I-129 H-1B petition asking whether the petitioner had received funding under TARP/Section 13 of the FRA. The Immigration Service guidance states that if a company has received covered funding but has since repaid its obligations to the government, then the petitioning company should answer “No” to this question on the petition.
To determine whether funding obligations have been repaid, the Immigration Service suggests that employers seek guidance from the Department of Treasury or the Federal Reserve. The Immigration Service further states that if the H-1B petition indicates the employer is subject to the EAWA requirements, but the LCA does not contain those attestations required for “H-1B dependent employers” then the H-1B petition will be denied.
