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Inception date: 17 Feb 2009 | Removal date: 17 Feb 2011

Labour market access

The Employ American Workers Act (EAWA) applies stricter rules in the hiring of certain foreign workers when the hiring firm is a recipient of bail-out funds. This law is part of the 'American Recovery and Reinvestment Act of 2009' (designated as H.R.1, now Public Law 11-5), an omnibus measure that is better known as the stimulus package. Both houses of Congress approved the stimulus bill in January-February, 2009, which was then signed into law by president Obama on February 17, 2009.
The EAWA has the effect of tightening for some employers the rules of the H1-B visa program, under which foreign nationals come to the United States temporarily to work in a specialty occupation (i.e., a position that generally requires a bachelor's or higher degree and specialized knowledge). The regular H-1B rules generally require that certain firms that employ relatively large numbers of H-1B visa holders must show that in so hiring a visa holder they did not displace a U.S. worker. Those rules apply only to firms that exceed certain threshholds, and also provide for an exception if the individual in question earns a salary of at least $60,000, or has a master's degree or higher. In the case of firms that receive bail-out funds, however, the threshholds do not apply (see below), and the exception for higher-income or higher-education workers is not available.
The EAWA provisions are found in section 1611 of the stimulus package. The principal portion consists of a single yet complex sentence:
Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.
Stated more directly, this means that potential employers who receive funding under either or both of two bail-out programs instituted in 2008 (notably the Troubled Asset Relief Program or TARP) may not hire H-1B visa holders unless those employers comply with rules that are designed to prevent the displacement of U.S. workers. A 'sunset provision' in the law provides that this section 'shall be effective during the 2-year period beginning on the date of the enactment of this Act.'
This provision of law may expand the scope of firms that are subject to hiring rules that have heretofore applied only to what are known as 'H-1B dependent employers.' Prior to the enactment of EAWA, these consisted only of employers that meets at least one of three standards that are based on the ratio between the employer's total work force employed in the United States and the employer's H-1B nonimmigrant employees: (1) The employer has 25 or fewer full-time equivalent employees who are employed in the United States and employs more than seven H-1B nonimmigrants; (2) the employer has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States and employs more than 12 H-1B nonimmigrant; or (3) the employer has at least 51 full-time equivalent employees who are employed in the United States and employs H-1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees. Under EAWA, all firms that receive funding under the aforementioned bail-out programs are to be treated as 'H-1B dependent employers' no matter what absolute or relative number of H-1B nonimmigrants they employ.
H-1B dependent employers are required by law to make the following additional attestations to the Department of Labor when seeking to hire an H-1B visa holder:

  • It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens)) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
  • It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
  •  It has not 'displaced' any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and
  • It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.




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