US sets new H-1B hiring norms for companies on bailout programme

The US Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Programme or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.

The additional measures for hiring foreign specialists under the H-1B visa work programme will make it more difficult for the firms receiving government bailout to hire overseas workers and deal a body blow to Indian professionals seeking employment in the US.

These measures come about 10 days before the US Citizenship and Immigration Services (USCIS) starts accepting petitions for new H-1B visas for the fiscal year beginning October 1, 2009.

The new `Employ American Workers Act,' (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on 17 February 2009, was enacted to ensure that companies receiving covered funding do not displace US workers, a government release said.

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.' All H-1B dependent employers must make additional attestations to the US Department of Labor (DOL) when filing the Labor Condition Application.

EAWA applies to any labor condition application (LCA) and/or H-1B petition filed on or after 17 February 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before 17 February 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorised category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

USCIS is revising the application form (Form I-129) for non-immigrant worker to include a question asking whether the petitioner has received covered funding. USCIS will post this revised form on the USCIS Web site in time for the next cap subject H-1B filing period that begins on April l, 2009.

''While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010,'' the release said.

USCIS, however, said H-1B petitions that are already prepared for mailing using the previous Form I-129 (January 2009 version) need complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package.

A valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. This means that if the petitioner indicates on its petition that it is subject to the EAWA, but the labor condition application does not contain the proper attestations relating to H-1B dependent employers, USCIS will deny the H-1B petition, USCIS said.