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⇒ Student & Scholar Advising ⇒ Faculty, Staff, & Visitors ⇒ H-1B Employees ⇒ Troubled Assets Relief Program/Employ American Workers Act

Troubled Assets Relief Program/Employ American Workers Act

Several financial institutions (most notably Bank of America) have retracted some job offers to foreign hires because of an amendment added in February to the Troubled Assets Relief Program, the $700-billion bailout bill for the financial sector that was enacted last fall.  The new provision, called the Employ American Workers Act, prevents financial institutions that receive federal bailout money from applying for H-1B status for highly skilled immigrants if they have recently laid off, or plan to lay off, American workers.

The Employ American Workers Act was added to the stimulus bill in February by US Sens. Charles E. Grassley, an Iowa Republican, and Bernard Sanders, an Independent from Vermont.

The banks still aren’t sure exactly how to implement the Employ American provisions because regulations that will spell that out haven’t been issued yet.  As a result, banks that have received bailout money but have not yet retracted job offers are essentially keeping their foreign hires in limbo.

USCIS has stated that EAWA applies to any “hire” taking place on or after February 17, 2009 and before February 17, 2011.  EAWA 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.  EAWA does not apply to petitions to extend the H-1B status of a current employee with the same employer or a petition seeking to change the status of a current US work-authorized employee to H-1B status with the same employer.

Employment of H-1B Status Holder Will Be Terminated Prior to H-1B Approval Notice End Date by Employer

Question: What are my rights?

If your employer will terminate your employment prior to the end date listed on your H-1B Approval Notice, your employer is liable for the reasonable costs of your return transportation abroad if you choose to depart the US and request this of your employer.  This liability does not include H-4 dependent expenses, and usually includes airfare only.  See 8 CFR 214.2(h)(4)(iii)(E).

Question:Is there a grace period?

There is no grace period.  An H-1B employee whose employment is terminated is expected to either a) depart the US on or prior to the last day of employment or b) have filed with immigration an application to extend status with a new employer or to change status on or prior to the last day of employment.  If an application is filed with immigration, it must be received by immigration on or prior to the last day of employment.

Question: If I choose not to depart the US, what application do I need to file?  How do I file the application?  What status do I need to request?  I have other questions.

We advise you to speak with an immigration attorney who can further advise you.  An attorney in your area may be found here.