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The H-1B Visa Blog by Siliato and Malyk

Will The H-1B Cap Be Reached This Year?

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The "Employ American Workers Act," ("EAWA"), signed into law on February 17 by President Obama as part of the "American Recovery and Reinvestment Act", has certainly made it more complicated for companies that received Troubled Asset Recovery Program ("TARP") funds to hire new foreign workers on H-1B visas. More specifically, Section 1611(b) of the American Recovery and Reinvestment Act of 2009 provides that TARP recipients may not hire new H-1B workers unless such recipients comply with the requirements for an "H-1B dependent" employer, as defined by INA 212(n)(3).

Prior to EAWA, "H-1B dependent" was a special status assigned to companies that employ, generally, 15% or more of its workforce with H-1B visa holders.  Now, all TARP fund recipients will fall into that status, regardless of the percentage of H-1B non-immigrants it employs. As such, the United States Citizenship and Immigration Services ("USCIS") has since revised the Form I-129 HDC, Petition for Nonimmigrant Worker, to include a question which asks whether the petitioner has received TARP funding.  Although there is no separate question about Section 13 funding under the "Federal Reserve Act" on the newly updated form, recent USCIS guidance advises that the answer to the new TARP funds question should still be "yes" if the petitioner received government funds under Section 13 as such companies are are subject to the same restrictions under EAWA. [Section 13 funding includes government loans from the Term Asset-Backed Securities Loan Facility, otherwise known as "TALF", and other Federal lending programs].

Before hiring a qualified foreign national, H-1B dependent companies are required to actively recruit U.S. workers and may not file a Labor Condition Application ("LCA") for new employment unless they complete the required recruitment and make the attestations required of H-1B dependent employers. Among other attestations, H-1B-dependent companies are required to attest that the company (i) engaged in a "good faith" effort to recruit U.S. workers for the position for which the company is seeking to employ the H-1B worker; and (ii) offered at least the "prevailing wage" during the recruitment process for such U.S. workers.  Such attestations, of course, are subject to audit.

Some reports indicate that EAWA's stimulus-related restrictions will substantially impact the number of H-1B petitions filed under the 2010 quotas for H-1B visas.  Whether that is, in fact, the case remains to be seen.

Post Authored By: Scott R. Malyk, Esq., Meyner and Landis LLP

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