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US H-1B visa restrictions to end in two years

US H-1B visa restrictions to end in two years
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First Published: Sun, Mar 22 2009. 03 22 PM IST
Updated: Sun, Mar 22 2009. 03 22 PM IST
Washington: The US government’s controversial restriction on companies from hiring skilled foreign workers with non-immigrant H-1B visas will continue for only two years, the immigration department has said.
As part of a stimulus package passed last month for revival of the economy, President Barack Obama signed a new law, named “Employ American Workers Act”, which makes it difficult for the companies having received government bailout funds to hire H-1B foreign workers.
However, the US Citizenship and Immigration Services (USCIS), in a circular issued with its invitation of H-1B applications for the next fiscal, has now made it clear that the EAWA requirements are not permanent and would “sunset two years from the date of enactment.”
EAWA, which prevents a company from displacing US workers when hiring H-1B specialty occupation workers if the company received stimulus funds, took effect on 17 February, 2009 and it applies to any “hire” taking place before 17 February, 2011.
The Act defines “hire” as an employer permitting a new employee to commence a period of employment; that is, the introduction of a new employee to the employer’s US workforce.
USCIS has said that it would begin accepting H-1B visa applications from 1 April for the next fiscal 1 and would subject the applications to various terms and conditions related to EAWA.
Total such visas to be issued in the fiscal, beginning 1 October, would remain capped at 65,000. Besides, USCIS would also consider the first 20,000 H-1B petitions filed on behalf of foreigners who have earned a US masters’ degree or higher education.
The new law has created an uproar in Indian IT space, as professionals from the country form the majority of people going to the US on H-1B visa to work in IT-related functions at banking and financial services firms.
The financial services firms are the main recipients of the stimulus packages in the US and would be therefore subjected to various restrictions in hiring H-1B visa holders.
An H-1B non-immigrant is a foreign national who comes to the United States temporarily to work in a specialty occupation. A specialty occupation position is one that generally requires a bachelor’s or higher degree and specialized knowledge.
US 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.
USCIS said that it was revising its application form for non-immigrant workers to include a question asking whether the petitioner employer had received covered funding.
Under EAWA, any company that has received covered funding and seeks to hire H-1B workers is considered to be an “H-1B dependent employer” and such employers would now required to make additional attestations to the US Department of Labour, while filing a Labor Condition Application (LCA).
These include, the company’s steps to recruit US workers using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B non-immigrant.
The company would also have to attest that it had offered the job to any US worker who applied and was equally or better qualified for the job that is intended for the H-1B non-immigrant.
Besides, the company should not have “displaced” any US worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.
A US worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B non-immigrant is sought.
The company would also have to declare that it would not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a US worker within 90 days before or after the placement of the H-1B worker.
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First Published: Sun, Mar 22 2009. 03 22 PM IST