USCIS Issues Additional Information Regarding the Employ American Workers Act (EAWA) to Employers Filing H-1B Petitions

WASHINGTON—U.S.
Citizenship and Immigration Services (USCIS) today provides additional
guidance regarding the Employ American Workers Act (EAWA) to employers
seeking to file H-1B petitions. 

The EAWA was enacted to ensure
that companies that receive funding under the Troubled Asset Relief
Program (TARP) or section 13 of the Federal Reserve Act do not displace
U.S. workers. Under this legislation, any company that has received
covered funding and seeks to hire new H-1B workers is considered an
“H-1B dependent employer.” An H-1B dependent employer must make
additional statements 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). Please refer to the DOL’s Web site for guidance regarding the LCA filing requirements.

Subsequent
to the enactment of EAWA, USCIS revised its Form I-129, Petition for
Nonimmigrant Worker, to include a question asking whether the employer
received covered funding (Question A.1.d).  See the first page of the
H-1B Data Collection and Filing Fee Exemption Supplement. Question
A.1.d. is meant to identify petitioners who received funding under TARP
or section 13 of the Federal Reserve Act when the petition is filed.

USCIS
understands that some businesses who received covered funding may have
subsequently repaid their obligations and may not know how to respond
to Question A.1.d. (For information on whether covered funding
obligations have been repaid, recipients of TARP funding should seek
guidance from the Department of Treasury, or the Federal Reserve,
respectively.) If you have repaid your obligations, then answer “No” to
Question A.1.d. If you wish to provide further information with the
petition to assist USCIS in determining that your status for purposes
of EAWA is correct, you may do so.

USCIS reminds you that a valid
LCA must be on file with DOL when the H-1B petition (with a copy of the
LCA) is filed with USCIS. Processing delays or a denial of the H-1B
petition may result if the LCA does not correspond with Question A.1.d
of the H-1B petition, unless any inconsistency is explained to the
satisfaction of USCIS. For example, if the LCA includes the additional
statements, but Question A.1.d is answered “no,” you can explain that
you had received covered funding at the time of filing the LCA but
repaid the obligation before filing the Form I-129. However, please
note that if you indicate on the petition that you are subject to the
EAWA, but the LCA does not contain the proper declarations relating to
H-1B dependent employers, USCIS will deny the H-1B petition.

USCIS
additionally reminds employers that EAWA applies only to new hires and
not to H-1B petitions seeking to change the status of a beneficiary
working for the petitioning employer in another work-authorized
category. It also does not apply to H-1B petitions seeking an extension
of H-1B status for a current employee to continue working for the same
employer.