Employ American Workers Act (EAWA)

The EAWA was enacted to ensure that companies that receive funding under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act 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.” An H-1B dependent employer must make additional statements to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA).

Before an H-1B application can be submitted, an employer must obtain certification of a labor condition application. Special attestation requirements include a statement on the LCA by the employer that they have made good faith efforts to recruit U.S. workers. The attestation must contain the number of workers sought, the occupational classification for each, the prevailing wage and method for determining it, and the wage rate and working conditions. The employer must make this attestation available for public inspection within one day of filing with DOL.

For any employer deemed “H-1B dependent”, the cost of filing an H-1B petition will likely increase. To establish this good faith effort, the employer will have to prove that they have made an effort to recruit for this position. If the employer recruited and only found the foreign national they wanted to hire, the answer is simple: employers would put in copies of ads, efforts to recruit at job fairs, on campus recruiting, etc…

However, what if H-1B dependent employer receives an unsolicited resume from a well qualified applicant and wants to sponsor the applicant for an H-1B? The employer will have to demonstrate that good faith effort, and that would involve expenditure.