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      Immigration Sponsorship — page 2

      Labor condition applications and public access files, prevailing wage determinations, permanent labor certification audits, school certification and student record reporting, employment verification programs, and the penalties for getting any of it wrong.

      13
      Immigration Sponsorship

      Debarment From the Labor Certification Program

      The Office of Foreign Labor Certification may debar an employer, attorney or agent from filing permanent labor certification applications for not less than one year and not more than three. The grounds include fraud and willful misrepresentation, but also a substantial failure to comply with the audit process, with supervised recruitment, or with the terms of the application. Notice issues in writing, and the sanction reaches every application filed by or for the debarred party.

      5 min readFederal law

      14
      Immigration Sponsorship

      What an Employer Promises on a Labor Condition Application

      An employer filing Form ETA-9035 attests that it will pay the higher of the actual and prevailing wage, that working conditions will not adversely affect similarly employed workers, that no strike or lockout exists in the occupational classification at the place of employment, and that notice has been given. The wage promise runs until a bona fide termination, the notice promise attaches to each place of employment, and a public access file must be assembled within one working day of filing.

      6 min readFederal law

      15
      Immigration Sponsorship

      Designated School Officials: Authority, Limits and Duties

      A designated school official must be a regularly employed member of the school administration whose office is at the school, and must be a citizen or lawful permanent resident. Each campus has one principal official and may have others. The role issues Forms I-20, authorizes curricular training, recommends post-completion training and releases transfers. It cannot grant status, cannot issue work authorization, and cannot reinstate a terminated record.

      5 min readFederal law

      16
      Immigration Sponsorship

      Substantive and Technical Violations: Which Can Be Cured

      The statute treats a technical or procedural failure as compliance where the employer made a good faith attempt, provided it is given notice and at least ten business days to correct. Substantive failures carry no cure. The distinction is drawn by agency guidance rather than by regulation, and the adjudicating judges have not always followed it. Penalties begin with the proportion of forms carrying violations and are adjusted for five statutory factors.

      5 min readFederal law

      17
      Immigration Sponsorship

      Prevailing Wage Determinations and the Four Wage Levels

      A prevailing wage determination is requested on Form ETA-9141 from the National Prevailing Wage Center and states a wage for the occupation in the area of intended employment at one of four levels. The level starts at entry and rises with experience beyond the occupational norm, education above the norm, supervisory duties, licensing and special skills. A determination is valid for a stated window and the filing must occur inside it.

      5 min readFederal law

      18
      Immigration Sponsorship

      The Willful Violator Designation and What It Triggers

      An employer becomes a willful violator when a final agency or judicial finding establishes a willful failure to meet a condition of the application, or a material misrepresentation in it. For a period of years running from that finding, every application the employer files carries the additional attestations otherwise reserved for dependent employers, exempt workers provide no relief, and the agency may open investigations without any complaint at all.

      5 min readFederal law

      19
      Immigration Sponsorship

      The Notice of Inspection and the Three Days That Follow

      An inspection begins with a written notice requiring production of the employment verification forms within three business days of the request. A subpoena for supporting records ordinarily accompanies it, covering payroll, employee lists and corporate documents. The inspection compares the forms against those records. It closes with one of several notices, ranging from a compliance letter to a notice of intent to fine, which carries its own deadline for requesting a hearing.

      6 min readFederal law

      20
      Immigration Sponsorship

      Benching and the Duty to Pay From the First Day

      The wage obligation begins when the sponsored worker enters into employment, and in any event no later than a fixed number of days after entry to the country or after becoming eligible to work for the employer. Nonproductive status caused by conditions related to employment, including a lack of assigned work, must be paid at the full rate stated on the application. The obligation ends only on a bona fide termination, which requires three separate acts.

      5 min readFederal law

      21
      Immigration Sponsorship

      Material Change: When a New Filing Is Required

      An amended petition is required where there is a material change in the terms and conditions of employment or in the worker's eligibility. A move to a place of employment outside the area of intended employment is a material change and requires a new certified application filed before the move. A move inside the area requires a fresh notice but no new petition. Certain corporate successions require only a documented statement assuming the predecessor's obligations.

      5 min readFederal law

      22
      Immigration Sponsorship

      Third-Party Placement and the End-Client Documentation

      A petition covering services in more than one location must include an itinerary showing the dates and places of the intended work. Where the worker sits at a customer site, the sponsor must also hold the agreements linking itself to that customer, evidence that it retains the right to control the work, a certified application covering the location, and proof that notice was posted there before placement began.

      5 min readFederal law

      23
      Immigration Sponsorship

      Notice of Filing: Where a Posting Goes and for How Long

      Where a bargaining representative exists for the occupational classification, notice of the filing goes to that representative. Where none exists, the employer posts notice in at least two conspicuous locations at each place of employment for a total of ten days, or gives electronic notice to affected workers for the same period. The notice must state the number of workers, the classification, the wage, the period and locations, and where a complaint may be filed.

      5 min readFederal law

      24
      Immigration Sponsorship

      Business Necessity for Requirements Above the Normal Minimum

      The requirements for a sponsored position must be those normally required for the occupation and must not exceed the preparation the occupational classification assigns. Where they do, the employer must document that the requirement bears a reasonable relationship to the occupation in the context of its own business and is essential to performing the duties in a reasonable manner. Separate tests govern foreign language demands and experience gained with the sponsor.

      5 min readFederal law