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 (DOL) 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
• DOL’s finding is entered on or after October 21, 1998.

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 (see WH Fact Sheet #62Q).
Willful violators and H-1B-dependent employers (see WH Fact Sheet #62C) 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 (see WH Fact Sheet #62N);

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 (see WH Fact Sheet #62N);

• The employer has taken good faith steps to recruit U.S. workers (see WH Fact Sheets #62O and #62P); 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 (see WH Fact Sheets #62O and #62P).

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.

H-1B Debarred/Disqualified List of Employers

*This list is effective as of March 31, 2014.

The table represents the number of US jobs created or lost during the years of each presidents’ term. Sometimes these numbers are debated:they include only non-farm payroll employment, which excludes certain types of jobs, notably the self-employed. However, as a semi-balancing factor, they count one person with two jobs as two employed persons. Another factor to consider is population growth, which provides opportunities for the creation of jobs, rendering these figures less impressive.
JOB DESCRIPTION: This step is a beginning of the process and it must be provided to the SWA when requesting a prevailing wage information. PREVAILING WAGE: Employer is not permitted to offer a wage rate lower than the prevailing wage rate. RECRUITMENT SOURCES: Job posting in SWA: Employer is obligated to place a job order with the SWA serving the area of designated employment. The 30 day job order timeframe must end at least 30 days prior to filing. Online job posting: We are able to offer you discounts on placing a postings on an online job board. We collaborate with many job board owners and receive special discounts, which are passed on directly to you. Printed media job posting: Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers.Employment firm: Since an employment agency is a subsidiary of or company, this service discount is definitely considerable.

Does the job location address need to be included in the advertisement?

No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.

Does the employer’s address need to be included in the advertisement?

No, the employer’s physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed.

Does the offered wage need to be included in the advertisements?

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?

As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer’s claim there are no available U.S. workers for the job offer.

What level of detail regarding the job offer must be included in the advertisement?

Employers need to apprise applicants of the job opportunity.
The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment.
As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s application, the employer will meet the requirement of apprising applicants of the job opportunity.

An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity.
If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report.

Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different? 

Generally, all the required steps must be different.

Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers.
For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps.
Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional “trade or professional organizations” recruitment step, or count the job order again as an additional “web site other than the employer’s” step. 

How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?

The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor’s or higher degree is a customary requirement.

For all other occupations not normally requiring a bachelor’s or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2).
Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

The actual process for permanent labor certification varies depending upon the program being used.

The filing of applications is the responsibility of the employer, not the employee.

However, the employee can benefit from understanding the program being utilized in his/her behalf. In general, the Department of Labor (DOL) works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Once a permanent labor certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.

Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. In most instances, employers first seek labor certification from the U.S. Department of Labor (DOL).

Although each foreign labor certification program is unique, there are similar requirements that the employer must complete prior to the issuance of a labor certification. In general, the employer will be required to complete these basic steps to obtain a labor certification:

1. The employer must ensure that the position meets the qualifying criteria for the requested program.
2. The employer must complete the ETA form designated for the requested program. This may include the form and any supporting documentation (e.g., job description, resume of the applicant, etc.).
3. The employer must ensure that the wage offered equals or exceeds the prevailing wage for the occupation in the area of intended employment.
4. The employer must ensure that the compliance issues effected upon receipt of a foreign labor certification are completely understood.
5. The completed ETA form is submitted to the designated Department of Labor office for the requested program (e.g., SWA, processing center or the national office).
6. The employer is notified of the determination of the Department of Labor.

Once the application is certified by DOL (approved), the employer must petition the U.S Citizenship and Immigration Services (USCIS) for a visa. Approval of labor certificate does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the Immigration and Nationality Act (INA). 

The foreign labor certification process is the responsibility of the employer, not the employee; however, the employee can benefit from understanding these programs. The actual procedures depend on the nature of the visa being requested: Permanent, H-1B, H-2A, H-2B, D-1.

* Labor Condition Application (LCA)

* Labor Condition Application (LCA)

* Labor Condition Application (LCA)

2014 H1B Visa Report: Top H1B Visa Petition Status

Texas is the second biggest state in the nation who permanently employs foreign workers. Reports show that Texas chronically suffers from deficiency of qualified workforce, leading with computer and math related occupations. In Houston alone, (as of June 2014), there are 150 applications in process, awaiting DOL approval to proceed with “importing” foreign workers to Houston, TX: Computer Systems Analysts(24), Computer Programmers(17), Mechanical Engineers(15), Software Developers(12), Computer Occupations(7), Database Administrator(6), Financial Analysts(5), Petroleum Engineers(5), Chemists(4), Operations Research(4), etc.

For those who are not familiar with the PERM process, here is a brief overview:

Program Electronic Review Management (PERM) is the system used for obtaining labor certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (“green card”). This is also known as PERM labor certification.
Before a U.S. employer can file an immigration petition for a foreign worker with U.S. Citizenship and Immigration Services (USCIS), the employer must first obtain an approved labor certification from the Department of Labor (DOL).

The DOL must certify to the USCIS both that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job offered the alien at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Prior to filing the permanent labor certification application, the employer must conduct recruitment of U.S. workers for the job being offered.
The following mandatory recruitment activities are required for all applications involving professional and non-professional occupations which are not filed for Schedule A positions or Special Handling:
Job Order – The employer must place a job order with the local SWA for a period of 30 days. Advertisements in Newspaper or Professional Journals – The employer must place an advertisement in a newspaper of general circulation on two different Sundays. In-House Posting – The employer must post an internal job posting (also called a notice of filing) with all DOL required information for a period of 10 consecutive business days. As additional advertizing employer may utilize Job fairs, Employer’s web site, Job search web site other than employer’s, On-campus recruiting (usually for positions requiring no experience, Trade or professional organizations, Private employment firms, An employee referral program, if it includes identifiable incentives, A notice of the job opening at a campus placement office, if the job requires a degree but no experience, Local and ethnic newspapers, to the extent they are appropriate for the job opportunity, Radio and television advertisements.
Advertisements must not contain additional job requirements not normally required for the position (unless there is a demonstrated business need) and cannot contain wages or terms of employment that are less favorable than those being offered to the alien beneficiary.
Once the job has been advertised, the employer must interview U.S. applicants that have met the minimum requirements for the position. If the employer rejects U.S. workers that meet the minimum qualifications, employer must document why in its recruitment report. The employer must have a lawful, job-related reason for rejecting a minimally qualified U.S. worker, and include that reason in the recruitment report.

Obviously, this is a very long, complicated and costly process. Bottom line, employers have to prove to DOL that they have done everything in their power to reach qualified American workers, but were not able to find a qualified candidate.

DOL reports show that it is apparent that we are lacking American IT brains, and India has a surplus. So you ask yourself: shouldn’t we get in an accelerated mode and train US candidates, so the void could be filled internally?
My answer is YES. However, that is a subject for another discussion.

What is mind boggling  is that so many employer claim that they can not find qualified US workers in occupations where there should be plenty of supply. Please take a look at the following examples:

• ABIR BUSINESS INC. DBA STOP N ZIP FOOD MART – |HOUSTON, TEXAS, 77015 | Stated they could not find a gas station attendant in the US, even though the annual salary offered was $ 49,587. Their application was certified, and the worker is from India.

• STAR PROTECTION AGENCY LLC – | HOUSTON, TEXAS, 77024 | Stated they could not find a security guard in the US. They planned to hire a worker from Nepal. However, the application was denied.

• DRAGER’S INDUSTRIES, INC. (not to be confused with Dräger or Draeger), – | PEARLAND, TEXAS, 77581 | Stated they could not find a welder in the US. The pay offered was $19.50/hr., and they planned to hire a worker from Mexico. The application was denied.

Even though it has changed its color, the “green card” is a proof that the owner is a lawful permanent resident.

As such, he or she has been legitimately granted immigration benefits, which include authorization to live and work in the United States.  Whether obtained by a green card lottery, through employment, or eb2, green card holders are here to stay. Green card rules apply to the holder status and appropriate liberties.

After doing a bit of math, and just computing the top 100 sponsors, the numbers are pretty darn impressive.

In one year the influx of more than 11,000 foreign workers pays total of annual salaries: $112,489,602,220. Yes, more than 100 billion dollars a year.

Following is a list of numbered top 100 USA sponsors for FY 2013.

Read more articles about green card related topics at Delatorem.com

The H1b visa program permits employers to provisionally employ foreign workers in the United States on a nonimmigrant basis in jobs such as special professions or as models of eminent merit and aptitude. A specialty profession requires the hypothetical and practical application of an entity with specific knowledge and a bachelors degree or the comparable in the specific specialty. H1b visa requirements depend on a sponsor (a company in the US), who needs to submit a Labor Condition Application. H1b visa status depends on DOL and the USCIS (Immigration and Naturalization Service) decisions. PERM foreign labor applicaton and certification is obtained via US Department of Labor.Wondering how to check status of PERM application? The company’s attorney states that the labor certification application was filed in January. It would take 45-60 days to approve. Now, 5 months past, we haven’t heard anything. I asked the lawyer, what the situation was. He said there was no way to check what’s happening under the new rules. You, your attorney and your Human Resources can log into the system, find the case number and check the status. My lawyer said he filed electronically. I will check with Human Resources. Just type the ETA Case Number and it yields the standing and the file date. In general, how long does it take for a case to be set to “in growth”? Possibly, the next day after answering the sponsorship survey, the case status transformed. Individuals typically can’t check PERM standing virtually.

The H-1B visa program limits the number of cap-subject petitions to 85,000 each fiscal year. But why thousands of new LCA petitions for H-1B visa could still be filed after the cap was reached? Why over 300,000 LCA petitions were filed each fiscal year?

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:

• Institutions of higher education
• Non-profit entities related or affiliated to a higher education institution
• Non-profit research organizations or governmental research organizations

Petitions filed on behalf of current or former H-1B workers who have been counted previously against the cap also do not count toward the cap. Accordingly, USCIS will continue to process FY 2013 and FY 2014 petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
• Allow recapture of the time that H-1B workers spent outside the U.S.
• Change status back to H-1B from other status like H-4 or F-1.