8/19/2008

1. Department of Labor Publishes and Maintains Debarred H-1B Employers List

Another arm of the DOL, ESA is publishing and updating the list of the H-1B debarred employers list online (http://www.dol.gov/esa/whd/immigration/H1BDebarment.htm ). This enforcement actions are likely to flourish in a full blown manner, particularly beginning from January 1, 2009 when the OFLC launches a new ETA 9035E form that will focus on the "account" concept to track down the employer's pattern of irregular filing behaviors in violation of the labor condition application rules and prevailing wages. Beware.

2. What is a “willful violator employer”? 

“Willful violator” or “willful violator employer,” means an employer that meets all of the following standards: 

• A finding of violation by the employer is entered in either of the following two types of enforcement proceeding: 1) A Department of Labor proceeding under the Immigration and Nationality Act (INA) § 212(n)(2); (8 U.S.C. § 1182(n)(2)(C); or  2) A Department of Justice proceeding under INA § 212(n)(5); (8 U.S.C.§ 1182(n)(5).)  

• The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact (two of the Labor Condition Application (LCA) attestations; and  

• The agency’s finding is entered on or after October 21, 1998.  

3. A willful violator employer must comply with additional attestations under any LCA it files within five years of the willful violation finding. 

The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers. Willful violators and H-1B-dependent employers which file an LCA must meet the following additional requirements: 

• The employer has not displaced a U.S. worker at the time of filing an H-1B visa petition;  

• Before placing an H-1B worker at a secondary employer’s work site, the employer has inquired as to the secondary employer’s intent to displace a U.S. worker;  

• The employer has taken good faith steps to recruit U.S. workers; and  

• The employer has offered the job to any equally or better qualified U.S. worker who applies for the job for which the H-1B worker is sought. 

Willful violators are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator. The Wage and Hour Division maintains a current list of such H-1B willful violators.