The Employ American Workers Act ( EAWA ) was a component of the American Recovery and Reinvestment Act of 2009 (ARRA, commonly called the "stimulus bill") passed by the 111th United States Congress and signed into law by Barack Obama , then President of the United States , on February 17, 2009. The Act had a validity period of two years and was set to expire on February 17, 2011. It was not renewed, hence it sunset on February 17, 2011 and is no longer applicable.
32-447: EAWA affected only those companies that had received funds from one of these: EAWA imposed the requirement that all such companies would be classified as H-1B-dependent employers for their Labor Condition Applications , with the following caveats: Form I-129 was modified by the USCIS to include an additional sheet asking questions about receipt of TARP and Section 13 funding and repayment of
64-475: A Nonimmigrant Worker is a form submitted to the United States Citizenship and Immigration Services used by employers or prospective employers to obtain (or amend the details of) a worker on a nonimmigrant visa status. Form I-129 is used to either file for a new status or a change of status, such as new, continuing or changed employer or title; or an amendment to the original application. Approval of
96-508: A substantial portion of the workforce used the H-1B. Its extension to companies that may not otherwise have a large H-1B workforce was due to concerns that government funds given to banks be used to tackle problems of unemployment and depression in the United States, rather than fund the livelihoods of foreigners. EAWA received sharp criticism from immigration lawyers and economists who alleged that
128-471: Is considered H-1B-dependent if the number of H-1B employees crosses a threshold relative to the total number of employees: Employers who are identified as H-1B-dependent and/or who have been found to have committed a willful violation or misrepresentation of a material fact in the past five years are required to fill Section F-1 Subsection 2 of Form 9035, providing additional attestations, as described below. Moreover, if an employer becomes H-1B-dependent after
160-745: Is submitted to and needs to be approved by the United States Department of Labor Employment and Training Administration (DOLETA)'s Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035. A Labor Condition Application must and should include four attestations from the employer. Employers need to maintain relevant documentation and may need to submit it if asked. The attestations are in Section F of ETA Form 9035 (the LCA form). The employer must attest, and may need to furnish documentation upon request, to show that
192-529: Is valid up to three years after the start date indicated on the LCA or to the end date indicated on the LCA. However, if the employer becomes H-1B-dependent , or a strike, lockout, or work stoppage occurs between the time of LCA filing and the approval of the associated H-1B petition, the LCA ceases to be valid. For E-3, the LCA is valid for only two years. A LCA petition approved by the United States Department of Labor must be submitted as part of
224-477: The Form I-129 (Petition for a Nonimmigrant Worker) application for work authorization for H-1B, H-1B1, or E-3 status. This is true both for people applying for their first H-1B work authorization and for people transferring to a different job. LCA petitions can be submitted year-round. However, for those applying for their first work authorization under the capped H-1B, where applications can generally be made only in
256-589: The Department of Labor's Foreign Labor Application Gateway (FLAG) System ( https://flag.dol.gov/ ) that is available at all times. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the ETA Form 9035E through the iCERT System. An employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail on
288-403: The ETA Form 9035. FLAG replaces the Department of Labor's legacy system called iCERT, that was deprecated on May 1, 2020. The United States Department of Labor typically takes up to 7 days to approve or reject a LCA. Rejection is accompanied by an explicit listing of problems with the applications. The employer may resubmit the LCA after addressing the problems. For H-1B and H-1B1, the LCA
320-401: The United States can directly apply for a visa based on their job offer and other supporting documents. The statuses include: For the visa classifications that require Form I-129, a person outside the United States needs to apply for the corresponding visa. The visa application must include an approved Form I-129 as well as other supporting documents necessary for the visa status. For each of
352-583: The United States who are switching status or employer do need to file Form I-129. Based on the Portability Rule of the American Competitiveness in the 21st Century Act (AC21) of 2000, a person on H-1B status may switch to a new job and begin the new job after the Form I-129 H-1B petition has been received by United States Citizenship and Immigration Services but does not need to wait for
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#1733086227939384-401: The applicant may need to apply for visas multiple times if traveling outside the United States repeatedly. Each of these visa applications will rely on the same approved Form I-129 that is used as the basis for the worker's current work authorization; those who have already started employment may also need to submit additional proof showing that they have been working for the employer their status
416-522: The available data on LCAs to better understand and critique the H-1B program. As CIS has noted in its critique, LCA data is a flawed proxy for understanding the H-1B program because not all LCAs get used for actual H-1B petitions, not all H-1B petitions with valid LCAs get approved, and not everybody with an approved petition is able to get a visa and start work. However, the United States Citizenship and Immigration Services releases much more coarse data on approved H-1B Form I-129 petitions, rather than data at
448-503: The classifications for which Form I-129 can be filed, there are associated visa classes for dependents (spouses and minor children), such as the H-4 visa for H visa holders and the O-3 visa for O visa holders. Those already present in the United States who want to transition to dependent status can file Form I-539 for change of status. Whether an individual holds a single-entry or multiple-entry visa,
480-455: The day the application is filed, there is not a strike, lockout, or work stoppage in the named occupation at the place of employment and that, if such a strike, lockout, or work stoppage occurs after the application is submitted, the employer will notify ETA within three (3) days of such occurrence and the application will not be used to file a work authorization petition until the ETA has determined that
512-510: The employer filled the Labor Condition Application. The Public Access File must include: The public access file must be made available to any member of the public within one working day after the date on which the LCA is filed with ETA. Not having a Public Access File available to the public at short notice is itself a compliance failure, even if the employer can generate the file (i.e., the employer has otherwise complied with all
544-426: The filing of approval of the LCA, but prior to filing the H-1B petition, then the LCA needs to be refiled. However, H-1B-dependent employers can exempt themselves from the attestations if the applicants on behalf of whom the petition is being filed all have a master's or higher degree or are getting a wage rate of at least $ 60,000/year. The employer promises not to displace any similarly employed US worker within
576-480: The first few weeks of April because of caps for every fiscal year, they need to make sure the LCA application is approved in time for the H-1B petition cycle. For the H-1B1 and E-3 classifications, a Form I-129 Petition is not needed for people who are outside the United States. They can directly apply for the H-1B1 or E-3 visa at their local consulate based on the approved LCA and other supporting documents. Those already in
608-507: The form makes the worker eligible to start or continue working at the job (on or after the indicated start date) if already in the United States . If the worker is not already in the United States, an approved Form I-129 may be used to submit a visa application associated with that status. The form is 36 pages long (8 pages for the main form, and the remaining pages for various supplements not all of which may be applicable to every petition) and
640-519: The funds. The United States Department of the Treasury clarified that, if the Treasury merely holds warrants in an entity (such as through the Capital Purchase Program) that does not make the entity subject to EAWA. The concept of H-1B-dependent workers, originally introduced in the American Competitiveness and Workforce Improvement Act of 1998, was intended to apply to companies for which
672-436: The instructions for the form are 29 pages long. It is one of the many USCIS immigration forms . For the following statuses, a Form I-129 must always be filed for initial employment as well as for extension of status or change to employment details: For visa statuses associated with free trade agreements, a Form I-129 is needed only if the worker is transitioning status while within the United States. Workers who are outside
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#1733086227939704-713: The law was an act of economically irresponsible protectionism, and that it starved companies of talented workers precisely when they needed those workers the most. An article in The Wall Street Journal noted that many students who had received confirmed job offers from financial institutions found their employers reneging on the offers due to the new restrictions. An article in EWeek noted that these restrictions on TARP and Section 13 recipients, most of them banks and other financial institutions, would likely make it easier for workers at technology companies to get H-1B visas, given
736-404: The level of individual petitions, leading researchers and analysts to rely on LCA data more despite its flaws. Any employer filing a Labor Condition Application for H-1B, H-1B1, or E-3 petitions is required to maintain a public access file for each worker on such a status, as long as the worker is working and up to one year later. This file is intended to provide additional explanation for the way
768-458: The limited number of visas allotted every year and the fierce competition for those slots. Labor Condition Application The Labor Condition Application ( LCA ) is an application filed by prospective employers on behalf of workers applying for work authorization for the non-immigrant statuses H-1B , H-1B1 (a variant of H-1B for people from Singapore and Chile ) and E-3 (a variant of H-1B for workers from Australia ). The application
800-500: The non-immigrant workers on behalf of whom the application is being made will be paid at or above both these numbers: The employer must make similar attestation regarding non-wage benefits offered. The employer must attest that the hiring of non-immigrant workers will not adversely affect the working conditions of similarly employed workers at the company, and that the non-immigrant workers will be offered similar working conditions as native US workers. The employer must attest that on
832-506: The non-immigrant. The employer will (has) offer(ed) the job to an equally or better qualified US worker. The United States Department of Labor Employment & Training Administration Office of Foreign Labor Certification, that processes LCAs, makes available various types of performance data on a quarterly and annual basis, including: The Center for Immigration Studies , a think tank that advocates strict limits on immigration and has been critical of temporary worker programs, has also used
864-428: The period beginning 90 days before and ending 90 days after the date of filing the H-1B nonimmigrant petition (note that this is not the date of the LCA filing). The employer promises not to place the employee at another employer's worksite unless the employer has made a bona fide inquiry as to whether the other employer has displaced or intends to displace a US worker any time between 90 days before and 90 days after
896-472: The petition to be approved. Failure to file the LCA on time has been cited as one of the top mistakes that H-1B employer applicants make. An employer can use a single LCA for multiple employees provided they are all in the same occupation and the same visa class (i.e., a single petition cannot be used for both H-1B and E-3 workers). Also, in the case of H-1B-dependent employers , different petitions must be used for exempt and non-exempt workers. An employer
928-483: The placement, and has no contrary knowledge. If the other employer makes such a displacement, the employer applicant may be subject to civil money penalties and disbarment. Prior to filing any petition for a H-1B nonimmigrant pursuant to the application, the employer took or will take good faith steps to meet industry-wide standards to recruit US workers for the job for which the nonimmigrant is sought, offering compensation at least as great as that required to be offered to
960-452: The privacy of employees and the company's other stakeholders. The Labor Condition Application should not be confused with Permanent Labor Certification , a process that people need to go through for most EB visas (employment-based visas) that provide a path to permanent residency. Below are some key differences: The Labor Condition Application has been shaped by some key pieces of legislation. Form I-129 Form I-129, Petition for
992-470: The rules). Employers also need to maintain additional private information in a private access file to share with the United States Department of Labor in the event of an audit or fraud investigation, but this Private Access File cannot be requested by the public. Employers are strongly advised not to include any information in the Public Access File beyond what is mandated by law, so as not to violate
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1024-408: The work stoppage has ceased. The employer must attest that as of the date of application, notice of the application has been or will be provided both to workers within the company in the said application. Also, the (prospective) workers on whose behalf the application is filed must be provided a copy of the application. The LCA is submitted through ETA Form 9035. The LCA must be submitted through
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