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Employers May Be Debarred From I-140 and I-129 Petition Approval for Certain DOL Violations

What is debarment?

If the Department of Labor determines that an employer is in violation of CFR § 655, there is a mandatory debarment period in which the employer may not be granted approval for any immigrant or non-immigrant visa petition. According to regulation, the USCIS shall not approve a petition during the debarment period. Regardless of the date that the employer filed the petition, it must be denied if adjudicated during the debarment period. Even if the petition was filed by the employer before the beginning of the debarment period, the USCIS may not approve the petition during the debarment period. This applies for both H1B non-immigrant I-129 petitions and for employment-based immigrant I-140 petitions. If you have questions about debarment issues, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation.

In one particular case, the USCIS Texas service Center denied a software company's I-140 petition for a computer systems analyst on the basis that the company was listed as a debarred entity. The petitioning company appealed to the Administrative Appeals Office (AAO), and counsel for the petitioner argued that the I-140 petition should be approved because it was filed before the debarment period started. The AAO upheld the USCIS' denial in its decision dated March 3, 2009, and held that the USCIS is barred from approving petitions during the debarment period regardless of the filing date.

How long is a debarment period?

Debarment periods are determined by regulation. There is a three tier system for determining debarment period lengths. The first tier is for non-willful conduct or less substantial violation. The second tier is for willful violation such as willful failure to meet any attestation condition, misrepresentation, and action in retaliation against whistleblowers. The third tier is for willful violations that result in layoffs such as a violation of the attestation, or misrepresentation of a material fact in the courts where employer displaces the US worker.

Tier 1 violations

A debarment period of at least one year is required for any violation pertaining to (1) strike or lockout or displacement of US workers. notification labor condition application specificity, or recruitment of US workers; (2) a substantial violation pertaining to notification, labor condition application specificity, or recruitment of US workers; (3) and misrepresentation of material fact on the labor condition application; (4) an early termination penalty paid by the employee; (5) payment by the employee of the additional $500 or $1,000 filing fee; or (6) certain violations regarding public access when the violation hampers the ability of the administrator to determine whether a violation has occurred or the ability of the public to have information needed to file a complaint.

Tier 2 violations

A debarment period of at least two years is required for a substantial violation pertaining to (1) a willful failure pertaining to wages or working conditions, strike or lockout, notification, labor condition application specificity, displacement of US workers, or recruitment; (2) a willful misrepresentation of material fact on the labor condition application; or (3) discrimination against an employee.

Tier 3 violations

A debarment period of at least three years is required for a violation where an employer displaced a US worker employed by the employer in the period beginning 90 days before attending 90 days after the filing H-1B petition in conjunction with any of the following violations: (1) a willful violation of certain provisions pertaining to wages/working conditions, strike/lockout, notification, labor condition application specificity, displacement, or recruitment; or (2) a willful misrepresentation of material fact on the labor condition application. If you have questions about debarment issues, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

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