Willful violator

There are different files that need to be made public when going through the H1-B visa process.

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What is a willful violator?

A willful violator is an employer who is determined to have knowingly failed to meet a condition or committed a willful misrepresentation of a material fact on the LCA. A material fact is defined as any item of information found on the LCA that is considered to be significant.

What is a significant item?

The Department of Labor considers the following as examples of a “significant item”:

  • “the number of H-1B workers sought;
  • the occupational classification for the worker sought;
  • the rate of pay;
  • the address where documents are kept;
  • the three-digit occupational group code;
  • the job title;
  • the part-time status of the employee;
  • the prevailing wage rate and its source;
  • the period of employment;
  • the location where the H-1B worker will work; and
  • the additional employer labor condition statements”.

How does an employer mispresent a material fact?

If an employer fails to exercise reasonable care and diligence, produced a false statement at the time of filing, or has created more than just an unintentional error, he has misrepresented a material fact. As such, if the employer knowingly or recklessly provides this incorrect information on the LCA, they have committed a willful misrepresentation and through a final agency decision, this employer may be labeled as a willful violator.

What are the consequences for a willful violator?

Aside from the penalties and sanctions that a willful violator may face (see “penalties and sanction tab”), there are additional attestations that a willful violator employer must comply with to stay in the H-1B program:

Displacement: The willful violator employer cannot layoff a U.S. worker 90 days before or after the filing of an H-1B Visa petition. If placing the H-1B worker at a secondary place of employment, the willful violator employer must inquire of the secondary employer’s intent to displace a U.S. worker.

Recruitment: The willful violator employer must, in good faith, have properly searched for U.S. workers before the LCA or petition is filed.  The employer must also have used industry standard methods for recruitment (external/internal, active/passive).  If there is an equally or better qualified U.S. worker who applies for the same job the H-1B worker was sought for, they must be given it.

Are there any exceptions or clauses to being a willful violator?

Yes, there is one. Similar to H-1B-dependent employers, a willful violator does not have the previously mentioned additional attestations if the LCA only lists “exempt” H-1B workers. An “exempt” H-1B worker is someone who earns at least $60,000 a year or has the equivalent or actual master’s degree or higher.

Additional facts regarding Willful Violator employers

Willful violator employers are subject to random investigations by the Department of Labor for a period of up to 5 years from the date that the employer is determined to be a willful violator.

The Wage and Hour Division maintains a current list of H-1B willful violators: https://www.dol.gov/whd/immigration/H1BWillfulViolator.htm

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