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The Stimulus Bill and H-1B Visas – Overall Impact and What is a “New Hire”?

President Obama signed the American Recovery and Reinvestment Act (ARRA) of 2009 on February 17th, 2009. The Act will remain in effect for 2 years. Section 1611 of the ARRA, called the Employ American Workers Act (EAWA) was added to the new bill. The application is limited to certain financial institutions, and specifically to their hiring of new H1B workers.

 

This brief article begins to explore what “new hire” means, and is not an in depth discussion of the new law. The bill is popularly referred to as the Stimulus bill and provides in part:

 

“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 e tseq.) to hire any nonimmigrant described in section 101 (a)(15)(h)(i)(b) of the Immigration and Nationality Act ( 8 U.S.C. 1101 (1)(15)(h)(i)(b)) for new employment unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) (8 U.S.C. 1182 (n) (3))), except that the second sentence of section 212(n)91)(E)(ii) of such Act shall not apply. Employers who are recipients of such funding may not file Labor Condition Applications (LCAs) for new employment unless they complete the actions and make the attestations required of dependent employers. *Until further notice, for those companies that are not dependent H1-B employers but are subject to this provision, please check Box “B” in Section F-1.1 of the ETA-9035 in order to demonstrate compliance as required. It is recommended that such employers retain documentation regarding their status.*

 

 

The floodgates have been thrown open as what a new hire exactly looks like under the new law. The term “hire” under the law means to permit a new employee to commence a period of employment. It is left to be seen how U.S. Citizenship and Immigration Services (USCIS) will interpret this new provision.

 

QUESTIONS AND ANSWERS (Q &A)

 

Students Currently in OPT status

Question:

 

Does “hire” mean change of status from OPT to H1B? “Hire” per the EAWA means, “to permit a new employee to commence a period of employment.”  Can you get around the displacement/dependent employer requirements in EAWA if the person is doing a change from OPT to H?

Answer:

Not sure yet. “Hire” may not include all change of status petitions from OPT to H-1B if the employee is already employed by the company - but our office is closely following

the emerging interpretations of the law soon to follow.

 

Companies Covered:

Question

 

What Organizations or Companies are covered by EAWA?

 

Answer:

 

A couple basic questions need to be asked in deciding whether the EAWA applies to your company. 1) Is your company a financial institution? 2) Does your company or organization receive funding under title I of the Emergency Economic Stabilization Act of 2008? Then the answer may be yes.

 

Guidance on Completing the LCA

Question:

 

Is there any guidance on how to complete the LCA by the Department of Labor (DOL)?

 

Answer:

 

Yes. The DOL provided the following comment:

 

*Until further notice, for those companies that are not dependent H1-B employers but are subject to this provision, please check Box “B” in Section F-1.1 of the ETA-9035 in order to demonstrate compliance as required. It is recommended that such employers retain documentation regarding their status.*

 

E-Verify

Question

 

Does E-Verify apply to this new provision?

 

Answer

 No.

 

If you’re considering applying for an H1B visa or hiring an H1B visa worker it is essential to have an H1B plan in place well in advance of actually filing an application in April. If you’re an employer or an employee considering an H1B visa for the 1st time and you have a grasp of the Stimulus bill’s impact and the new LCA portal (covered in our previous posted article 2/24), then approach the Department of Homeland Security with your petition. However, a majority of employers and foreign nationals will need to consult with experienced immigration counsel more than ever before when applying for an H1B visa in 2009.

 

Glendia Scott-Mondesir, Esquire

From Washington D.C.

(202)296-0122

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