labor lawAdivision of labor law center

The Department of Homeland Security recently outlined new restrictions for employers who receive stimulus finds to hire foreign workers through the H-1B visa program.

 

The most recent regulations were announced by the U.S. Citizenship and Immigration Services (USCIS) on March 20, 2009.

 

Employers who receive TARP funds will need to provide additional statements to the U.S. Department of Labor showing that they have made good-faith attempts to fill the positions with qualified American workers. In addition, the employers are not permitted to pay the foreign workers less than American workers with the same skills.

 

The new regulations are generated under the Employ American Workers Act or EAWA, a portion of the ARRA signed on February 17, 2009. The new provisions are in effect only until February 17, 2011 (unless extended by law.)

 

H-1B visas are granted to highly-skilled, temporary foreign workers for a maximum of 6 years. The visas are granted to just 65,000 workers per year, although an additional 20,000 visas are granted to workers with a master’s degree or equivalent. Many of the H-1B visas are granted to workers in the IT industry, including computer programmers and software engineers.

 

In 2008, the USCIS received about 3 H-1B visa applications for each one that was granted.

 

Any employer who has accepted TARP funds must take a number of actions before hiring an H-1B worker. These actions include making a good-faith effort to recruit and hire qualified U.S. workers using industry wide standards. Employers must also show that they have offered the job to any U.S. worker who applies and is equally as qualified as (or better qualified than) the H-1B worker.

 

In addition, TARP employers must show that they have not displaced any U.S. worker or laid off a U.S. worker from an essentially similar job, for 90 days before filling the position with an H-1B worker.

 

The new regulations cover any new H-1B employment, even if the worker is already approved for H-1B status. The statements must be on file with the H-1B petition or it will be denied. 

 

 

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