WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program 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 new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. 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 U.S. 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 Feb. 17, 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 Feb. 17, 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-authorized 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 Form I-129, Petition for Nonimmigrant 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.
However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to 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. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.
USCIS reminds petitioners that 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.
For more information, please see the accompanying Questions and Answers document about the Employ American Workers Act and its effect on H-1B petitions.
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009. Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked.
The numerical limitation on H-1B petitions for fiscal year 2010 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters’ degree or higher are exempt from the fiscal year cap.
USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the “final receipt date.” The date USCIS publishes information that the cap has been reached does not control the final receipt date. To ensure a fair system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.
H-1B petitions cannot be filed more than six months in advance of the requested start date. Petitions seeking an H-1B worker for an Oct. 1, 2009 start date can be filed no earlier than April 1, 2009.
Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories seeking work dates starting in FY 2009 or 2010.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:
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Extend the amount of time a current H-1B worker may remain in the United States.
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Change the terms of employment for current H-1B workers.
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Allow current H-1B workers to change employers.
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Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B petitioners should follow all regulatory requirements (8 CFR §214.2) as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2010 H-1B petition. Those documents are available from the Related Links section of this page.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.
We’ve met another benchmark in our efforts to eliminate the FBI Name Check backlog.
As of mid-February, USCIS and the FBI had completed all name checks that were pending for more than six months. In doing so, we beat our publicly stated goal by almost two full weeks. With the milestone’s completion, the FBI and USCIS have met or exceeded the first six milestones outlined last summer.
And that might not be the most exciting news. We’re on track to meet our May 31 milestone of completing name check requests pending longer than 90 days. By the end of June, the FBI will complete 98-percent of USCIS name check requests within 30 days and process the remaining two percent within 90 days.
Let me put that into perspective. At the beginning of November 2007, there were nearly 350,000 pending name check requests. Of that total, more than 54,000 had been pending for more than two years. Another 55,000 had been pending for at least a year. Today, there’s a grand total of 6,756 pending name check requests. And of that number, not one has been pending for more than six months. In fact as of that February 17 snapshot, the FBI was completing 99.2 percent of all requests in less than 30 days.
The results speak for themselves. The effective elimination of the name check backlog means that USCIS can make more timely decisions about immigration applications and petitions. That includes cases with derogatory information and those that are otherwise approvable. In both the present and the future, USCIS and the FBI will continue to focus on sustaining the rigorous and efficient screening of each name check request. Our joint attention to eliminating the name check backlog will ensure we reward deserving, eligible applicants with benefits like U.S. citizenship and permanent residency in a more timely manner.
Mike Aytes Acting Deputy Director
U.S. Citizenship and Immigration Services