USDOL v. Novinvest, LLC, 2002-LCA-24 (ALJ Jan. 21, 2003)
U.S. Department of
Labor
Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005
(504) 589-6201 (504) 589-6268 (FAX)
Issue Date: 21 January 2003
CASE NO.: 2002-LCA-00024
IN THE MATTER OF
ADMINISTRATOR, WAGE AND HOUR DIVISION,
Prosecuting Party
v.
NOVINVEST, LLC,
Respondent
APPEARANCES:
THOMAS C. SHANAHAN, ESQ.
For the Administrator
JAY SOLOMON, ESQ.
For the Respondent
BEFORE: LARRY W. PRICE
Administrative Law Judge
DECISION AND ORDER
This proceeding arises under the Immigration and Nationality Act, as amendedby the Immigration Act of1990 and amended in 1991, 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n) and 1184(c) (hereinafter "the Act") and the regulations promulgated thereunder at 20 C.F.R. Part 655, Subparts H and I.Under the Act, an employer may hire workers from "specialty occupations" to work in the United States for prescribed periods of time. 8 U.S.C. § 1101(a)(15)(H)(i)(b); 20 C.F.R. § 655.700. These workers are issued H-1B visas by the Department of State upon approval by the Immigration and Naturalization Service ("INS"). 20 C.F.R. § 655.705(b). An employer seeking to hire an alien in a specialty occupation on an H-1B visa must obtain certification from the United States Department of Labor ("DOL") by filing a Labor Condition Agreement ("LCA") before the worker is given an H-1B visa. 8 U.S.C. § 1182(n). An LCA filed by an employer must set forth, inter alia, the wage rate and working conditions for the H-1B employee. 8 U.S.C. § 1182(n)(1)(D); 20 C.F.R. §§ 655.731 and 655.732. Upon certification of the LCA by the DOL, the employer is required to pay the wage and implement the working conditions set forth in the LCA. 8 U.S.C. § 1182(n)(2). In this case, the Administrator, Wage and Hour Division ("Prosecuting Party" or "Administrator") alleges that Respondent owes back wages to four men employed to work as computer specialists in Atlanta, Georgia. For the reasons stated below, I find Respondent to be liable for back wages in the amount of $57,860.27.
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STATEMENT OF THE CASE
On August 6, 2001, Philip Peshin, an H-1B nonimmigrant worker from Russia, filed a complaint with the DOL's Wage and Hour Division ("WHD"), alleging H-1B violations by Respondent Novinvest. Peshin's complaint alleged that he had arrived in the United States prepared to work but instead was benched by Novinvest. According to Peshin's complaint, Novinvest never placed him on a job and refused to pay him, although he was not terminated. Thomasenia Shepherd, a WHD investigator, then held a conference with Ed Hyken, the president of Novinvest, on September 21, 2001. After investigating Peshin's claims, the Administrator concluded that Novinvest had committed potential violations within the twelve-month window.
After the initial meeting with Hyken, Shepherd asked for documentation on the dates that his other H-1B workers had come into the country and the dates that Novinvest began paying them. Hyken emailed three other H-1B employees and asked them to confirm a request for unpaid leave of absence for previous dates during which they had not been working. On November 29, 2001, the WHD investigator, having concluded that all four employees had been benched in violation of the Act, calculated the amount of back wages owed by Novinvest to each person. In addition, the other three H-1B employees later filed complaints with WHD.
On July 29, 2002, WHD informed Hyken that through its investigation, it had concluded that Novinvest had violated the Act by failing to pay wages as required. Within fifteen days of the notice, Hyken timely requested an administrative hearing to review the Administrator's determination. The case was referred to me, and I conducted a hearing in this matter on October 29, 2002, in Atlanta, Georgia. All parties were afforded a full opportunity to present evidence and argument, as provided in the Rules of Practice and Procedure before the Office of Administrative Law Judges, 20 C.F.R. Part 18. At the hearing, I admitted Joint Exhibit ("JX") 1, Prosecution Exhibits ("PX") 1-33 and Respondent's Exhibits ("RX") 1 and 2. The record was held open after the hearing to allow the parties to submit closing briefs. Both parties submitted briefs by January 1, 2003, and the record was closed. On January 15, 2003, the record was reopened to accept Respondent's response to Administrator's post-hearing brief, and the record is now closed.
STIPULATIONS
At the commencement of the hearing, the parties stipulated (JX-1), and I find:
1. Novinvest, LLC ("Respondent") is a Georgia corporation doing business at 6 West Druid Hills Drive, Atlanta, Georgia 31126.
2. Respondent is, or was at all times relevant to this action, engaged in the business of computer consulting.
3. Respondent filed an "LCA" or "Labor Condition Application for H-1B Nonimmigrants" on September 7, 1999. (PX 1).The LCA seeks ten programmer analysts for the period November 1999 through November 2002 for the Atlanta area and another ten programmer analysts for the same period in the San Francisco area. For the Atlanta area, the LCA lists a pay rate of $35,872 and a prevailing wage of $37,759. For the San Francisco area, the LCA lists a pay rate of $45,128 and a prevailing wage of $47,503. The LCA was certified on or about September 11, 1999, ETA Case No. 04344842.
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4. Respondent filed an "LCA" or "Labor Condition Application for H-1B Nonimmigrants" on September 25, 2000. (PX 2). The LCA seeks fifteen programmer analysts for the Atlanta area. The LCA lists a pay rate of $37,960 and a prevailing wage of $39,957. The LCA was certified on or about October 6, 2000, ETA Case No. 04365259.
5. The Administrator initiated an investigation of Respondent as the result of a written complaint from H-1B Nonimmigrant Worker Philip Peshin ("Peshin"), received by the Administrator on or about August 6, 2001. The Administrator properly concluded that there were potential violations within the twelve-month window. (PX 3).
6. Peshin arrived in the United States on February 22, 2001. (PX 3, 4). He signed an employment agreement with Respondent the next day, February 23, 2001. (PX 5).
7. Alex Koloskov arrived in the United States on March 12, 2001. (PX 6).
8. Igor Politykin arrived in the United States on March 30, 2000. (PX 8).
9. Igor Viazovoi arrived in the United States on April 17, 2001. (PX 11).
10. The prevailing wage for Peshin's position was $39,957 per year, or $3,329.75 per calendar month. Peshin received no pay from Respondent for at least the period of March 22, 2001, through May 22, 2001.
11. Koloskov received no pay from Respondent for at least the periods March 19, 2001, through May 30, 2001, and October 25, 2001, through February 14, 2002.
12. The prevailing wage for Politykin's position was $37,759 per year, or $3,146.58 per calendar month until October 1, 2000.
13. Viazovoi received no pay from Respondent for the period May 1, 2001, through June 30, 2001, and November 2, 2001, through December 6, 2001.
14. WHD's investigator held an initial conference with Respondent on or about September 20, 2001, where she met with Ed Hyken ("Hyken") of Novinvest.
15. There was no work available for Peshin upon his arrival in the United States.
16. Hyken sent an email to Koloskov, on or about September 25, 2001, which stated as follows:
hi alex, we are cleaning up our files, we need a confirmation from you that you requested to go on unpaid leave starting on 3/30/01 until further notice, pls reply to this email with that information, sincerely, ed
(PX 12).
17. Hyken also sent an email in late September 2001 to Politykin, which stated as follows:
hi igor, we need to receive an email from you confirming that you requested to go on leave of absence without pay effective 9/14/01, please copy and paste that sentence in your reply email, sincerely, ed
(PX 14).
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18. Hyken also sent an email to Viazovoi, on or about September 25, 2001, which stated as follows:
hi igor, we are cleaning up our files, we need a confirmation from you that you requested to go on unpaid leave starting on 4/30/01 until further notice, pls reply to this email with that information, sincerely, ed
(PX 15).
19. Respondent produced to WHD emails from Koloskov and Viazovoi and claimed that the emails constitute bona fidevoluntary requests for leave. (PX 16).
20. As a condition of employment, Respondent demanded that Peshin, Koloskov, Politykin and Viazovoi sign promissory notes and/or agreements agreeing to pay $5,000 to Respondent to cover costs allegedly incurred by Respondent.
21. WHD's calculations of unpaid wages allow credit to the Respondent for certain expenses, attributed to the H-1B workers in the amounts set forth below:
Peshin:
$3,175.90
Koloskov:
$1,800
Politykin:
$0
Viazovoi:
$400
22. The H-1B workers experienced periods of nonproductive status.
23. Respondent did not notify the INS that the H-1B workers in this case terminated employment before or during the periods of nonproductive status.
ISSUES
The Prosecuting Party and the Respondent each filed pre-hearing submissions and post-hearing briefs. The parties raised the following issues during the course of the hearing and in their briefs.
1. Whether Respondent met its wage obligations to each H-1B worker in nonproductive status as required by 20 C.F.R. § 655.731(c)(7)(i).
2. If Respondent did not pay wages to each of its H-1B workers during periods of nonproductive status, whether Respondent is entitled to an exception to its wage obligations, as set forth in 20 C.F.R. § 655.731(c)(7)(ii).
3. Whether Respondent violated its wage obligations under the Act and 20 C.F.R. § 755.731 by charging each H-1B worker a $5,000 early termination penalty to cover what Respondent characterized as costs associated with hiring, processing and training each H-1B worker.
4. The amount of back wages to which each H-1B worker is entitled.
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FINDINGS OF FACT
In addition to the facts stipulated above, I make these additional findings of fact based upon the testimony of witnesses at the hearing and the evidence submitted by both parties:
1. I found H-1B nonimmigrant workers Alex Kosolov, Igor Viazovoi and Igor Politykin to be credible witnesses and have weighed their testimony accordingly.
2. Edward Hyken is the president and controlling member of Novinvest, LLC. (Tr. 17). Hyken has a college degree in computer science and a graduate degree in finance and marketing. (Tr. 21). He formerly worked for Anderson Consulting and Lehman Brothers. (Tr. 21).
3. Novinvest places software developers at clients' sites in exchange for a fee. (Tr. 20). Novinvest provides its H-1B employees with an employee handbook which includes an "employee employment agreement" which sets forth the company policies. (Tr. 23-24; PX 5). The employee handbook does not specify whether or not employees are required to sign the employment agreement. (Tr. 23-24; PX 5).
4. According to Novinvest policy, if an employee leaves the company prior to completing one year of service, he or she owes the company a prorated portion of $5,000. (Tr. 45; PX 5, p. 5). This figure is Novinvest's estimate of the investment expended to hire, process and train an employee and is treated as an interest-free loan by the company. (Tr. 45, 53; PX 5, p. 5). None of the employees in question ever received the $5,000. (Tr. 72). Hyken also never produced receipts for the $5,000. (Tr. 74).
5. Novinvest sponsored Philip Peshin for the H-1B visa, and he came to the United States to work for Novinvest. Novinvest paid for his plane ticket. (Tr. 25; PX 3). Peshin was represented as an employee in a April 2001 letter written by a human resources manager at Novinvest. (Tr. 21-22, 31-32; PX 32). Although Peshin left the Atlanta area at some point after his arrival in 2001, Hyken was still able to locate him and send him checks for food and gasoline on April 25, 2001. (Tr. 28; PX 33). Peshin never made a written request for leave, and Hyken never sent a termination letter to Peshin. (Tr. 32-33).
6. On May 22, 2001, Peshin resigned from Novinvest after he found another employer who would sponsor his H-1B visa. (PX 3). On August 6, 2001, WHD received an H-1B violation complaint from Peshin. (PX 3). According to the complaint, when Peshin arrived in the United States, he was not placed at a client site. (PX 3). Instead, he made a resume, passed some programmer qualification tests and became certified as a Sun Java developer.(PX 3). When Peshin asked Hyken whether he would be terminated, Hyken told him to keep waiting for an assignment, although Hyken never paid him. (PX 3). After Peshin left Novinvest, he received a bill with expenses that he owed the company. (PX 3). Novinvest then filed a civil action against Peshin to recover these expenses. (PX 3).
7. On September 12, 2001, Novinvest obtained a judgment against Peshin in the amount of $8,789.45, which included the $5,000 investment fee and other cash advances from Novinvest to Peshin. (PX 21). Peshin has since returned to Russia. (Tr. 83).
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8. Thomasenia Shepherd from WHD began investigating Novinvest for potential H-1B violations after Peshin filed his complaint, which alleged that he had resigned after Novinvest failed to place him with any contractors during the period between February 22, 2001, and May 22, 2001. (Tr. 56-57; PX 3). During the investigation, Hyken explained to Shepherd that Peshin had special skills which made it difficult for him to be placed with just any client. (Tr. 58). Hyken also told Shepherd that Peshin had taken a month to spend time with his wife and had been sick for a week. (Tr. 58, 61; PX 16). Hyken did not have any documentation indicating that Peshin had requested unpaid leave for that period of time. (Tr. 59).
9. Novinvest also employed Koloskov, Politykin and Viazovoi. (Tr. 34). After Shepherd asked Hyken to provide written confirmation of these employees' requests for unpaid leave, Hyken emailed Koloskov, Politykin and Viazovoi and asked them to confirm that they had requested unpaid leave on previous dates during which they were not working. (Tr. 35-44, 76; PX 12, 14, 15). Hyken then faxed the emails and other documentation to Shepherd. (PX 16). Hyken never told these workers the reason for his email request. (Tr. 44). The emails received by WHD had been edited, and Hyken did not include Politykin's email with his documentation. (PX 12, 14, 15, 16, 18).
10. Koloskov came to the United States as an H-1B worker for Novinvest. (Tr. 85-86). Koloskov purchased his own plane ticket, and when he arrived in the United States, he had about $200. (Tr. 86). About four days after Koloskov's arrival, Hyken gave him some money. (Tr. 87). Although Koloskov was ready to work two days after his arrival, he was not placed with a contractor until about four months later. (Tr. 87-88). In the meantime, Hyken told Koloskov to work on his resume and improve his computer skills. (Tr. 88).
11. Koloskov did not ask Hyken to put him on unpaid leave from March 2001 until his contract with Extendia, a Novinvest client, began. (Tr. 89; PX 6). Hyken never suggested to Koloskov how he could earn money during this initial benching period. (Tr. 90). Hyken never told Koloskov that he might have to terminate him because there was no work available. (Tr. 90).
12. Koloskov also never asked Hyken to put him on unpaid leave when his contract with Extendia ended a few months later. (Tr. 90, 91; PX 6). Hyken never told Koloskov that he might have to terminate him because there was no work available, but he did tell Koloskov to send his resume out and try to find another computer job in which he could continue to work for Novinvest. (Tr. 91-92). Hyken also suggested that Koloskov try to find a job at Kroger. (Tr. 91; PX 6).
13. On September 25, 2001, Koloskov received an email from Hyken asking him to confirm that he went on unpaid leave from March 30, 2001, until further notice. (Tr. 92-93; PX 6; PX 12). Although Koloskov had not asked to go on unpaid leave at the time and did not understand what Hyken was asking him to do, he wrote the email because he trusted Hyken and did not think he should refuse to do what his boss asked. (Tr. 93-94; PX 6; PX 17). Koloskov's reply to the email read: "I confirm that I requested to go on unpaid leave starting on 3/30/01 until further notice." (PX 17).
14. Koloskov did not request to go on voluntary unpaid leave effective October 25, 2001, but because he was feeling pressured to do so, he did sign a document to that effect sometime in December 2001. (Tr. 94-95; PX 6; RX 1). Koloskov testified he had no reason to ask for leave at that time but did ask Hyken about money because he had not been paid since his contract with Extendia ended. (Tr. 95). In addition, on November 12, 2001, Hyken had refused to pay Koloskov's health insurance. (PX 6).
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15. Koloskov resigned from Novinvest in February 2002 after finding another job. (Tr. 95, 98; PX 6). He looked for another job because he had not been paid for several months by Novinvest nor received any health insurance, and he had housing, food and family expenses. (Tr. 95; PX 6). In a document dated February 22, 2002, Koloskov filed a complaint against Novinvest with WHD. (PX 6). Koloskov prepared this complaint himself and did not copy it from someone else. (Tr. 98).
16. Hyken sued Koloskov for the balance of the $5,000 investment fee included in the employment contract. (Tr. 95; PX 6; PX 22). On March 15, 2002, a judgment was entered against Koloskov in the amount of $2,347.52. (Tr. 97). Koloskov has repaid $1,200 of this amount to date. (Tr. 97-98).
17. Viazovoi came to the United States as an H-1B worker for Novinvest. (Tr. 104; PX 11). He purchased his plane ticket to America and arrived with $1,000. (Tr. 104). Novinvest provided Viazovoi with a place to stay. (Tr. 104; PX 11). He was ready to work immediately but did not get his first project until two months after he arrived. (Tr. 104-05; PX 11). Hyken told Viazovoi to find a job on his own by sending electronic resumes to other companies which could then contract with Novinvest for computer projects. (Tr. 105-06; PX 11).
18. Viazovoi worked on a project for Extendia from July 5, 2001 until October 25, 2001. (Tr. 107; PX 11). Novinvest did not give Viazovoi any more projects after this job ended. (Tr. 107). Hyken told Viazovoi to keep searching for jobs on the internet and suggested that he work at Kroger or at a gas station in the meantime. (Tr. 107; PX 11). Novinvest also discontinued Viazovoi's health insurance. (PX 11).
19. Viazovoi did not ask Hyken to put him on unpaid leave in late October 2001. (Tr. 107, 109). Hyken never said he would terminate Viazovoi, nor did Viazovoi ever ask Hyken not to terminate him. (Tr. 108, 110).
24. Hyken told Politykin to stay home during the first two months after he arrived, but he did not ask Politykin to go on unpaid leave at that time, nor did he suggest that Politykin look for another H-1B employer. (Tr. 118-19). Politykin did receive some payment during this time but was not paid the salary he had been promised. (Tr. 118). Politykin later reimbursed Novinvest for all the money it paid him during this time except for his housing expenses, which totaled about $800. (Tr. 118; PX 8).
25. Politykin began his first project on June 1, 2000, with SSBC Systems, and he worked there for one year and three months, until August 21, 2001. (Tr. 119; PX 8). Once this project was finished, Novinvest stopped paying Politykin his salary and did not give him another project but did not fire him. (Tr. 119-20). Instead, Hyken suggested Politykin go to work at Kroger. (Tr. 120; PX 8). Politykin did not ask Hyken to place him on unpaid leave so he would not lose his H-1B status. (Tr. 120).
26. In an email dated October 11, 2001, Hyken requested that Politykin go on unpaid leave retroactively effective to September 14, 2001. (Tr. 122). Although Hyken's email to Politykin implied that Politykin had asked to go on unpaid leave, Politykin had never done so. (Tr. 122, 123, 124). In his reply to the email, Politykin stated, "I confirm that in accordance with the request of Novinvest LLC, I agreed to go on leave of absence without pay effective September 14, 2001." (Tr. 122; PX 18).
27. Politykin began looking for another H-1B employer in mid-October 2001 after Novinvest refused to sponsor him for a green card, despite Hyken's earlier written promise to do so. (Tr. 127; PX 8; PX 28). Politykin resigned on November 15, 2001, when he found another employer. (Tr. 120; PX 8). He needed another job because he had to take care of his family and housing expenses. (Tr. 120).
28. Politykin prepared his complaint to WHD based on a previous complaint filed by another worker but did not seek any other assistance in writing the complaint. (Tr. 121). Politykin affirmed that, as his complaint stated, his wife had been in the office with him when Hyken told him he should go work at Kroger. (Tr. 126-27; PX 8).
29. On November 30, 2001, Politykin received a letter from Novinvest informing him that he owed the company $3,547.50 of the $5,000 investment fee. (PX 8). Novinvest then filed a civil action against Politykin to recover this sum. (PX 8).
30. After Politykin, Viazovoi and Koloskov filed their complaints with WHD, Shepherd investigated and discovered benching violations with regard to these employees. (Tr. 61; PX 6, 8, 11). According to Shepherd's calculations, Novinvest owes a total of $48,846.09 in back wages for all four complainants. (Tr. 62-63; PX 29).
31. Koloskov's wage rate was $39,957.00. (Tr. 63; PX 2). In calculating the back wages owed to him, Shepherd allowed Novinvest a one-week grace period after Koloskov's arrival in the United States. (Tr. 64). Since Koloskov was ready and willing to work but was not placed on assignment for several months after his arrival, Shepherd concluded that he had been benched during the period between March 19, 2001, and May 30, 2001. (Tr. 64). Koloskov also was benched during the period between October 25, 2001, and February 14, 2002, his last date of employment with Novinvest. (Tr. 65).
32. According to Shepherd's calculations, Novinvest owes $19,010.39 to Koloskov in back wages. (Tr. 66, PX 24). Shepherd gave Novinvest a credit of $1,800 for expenses such as rent and food money but did not include the $5,000 penalty. (Tr. 66-67; PX 24).
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33. Politykin was benched when he was available for work but was not placed on assignment for the period between April 1, 2000, and May 30, 2000. (Tr. 68-69). Shepherd calculated back wages owed to Politykin for this period of time based upon the prevailing wage rate for that period according to the applicable LCA ($37,759). (Tr. 68, 125; PX 1).
34. Once Politykin began working on June 1, 2000, his actual wage, which was $46,152, also became his required wage because it was higher than the prevailing wage set forth in the LCA. (Tr. 69). However, although Novinvest did increase Politykin's salary to $43,000 in October 2000, Politykin testified he was never paid $46,000. (Tr. 125; PX 28). During the time between May 28, 2000, to June 10, 2000, Politykin was paid less than the prevailing wage, so Shepherd calculated the additional pay he should have received, which came to $438.26. (Tr. 69-70).
35. Politykin was also benched from August 22, 2001, to November 22, 2001. (Tr. 69). On December 2, 2000, Politykin's salary increased to $50,000, which then became his actual wage/required wage. (Tr. 69-70, 125; PX 28). According to Shepherd's calculations, the total amount of back wages due to Politykin is $16,521.36. (Tr. 71, PX 25).
36. Peshin was benched from February 22, 2001, to May 22, 2001, when he resigned. (Tr. 71). Shepherd gave Novinvest a thirty-day grace period to account for the time when Peshin was sick and when his wife was visiting the United States. (Tr. 71-72). According to Shepherd's calculations, Novinvest owes $3,483.60 in back wages to Peshin. (Tr. 72; PX 26). Shepherd credited Novinvest for expenses the company paid on behalf of Peshin. (Tr. 72; PX 26).
37. Viazovoi's wage rate was $38,000. (Tr. 84). Viazovoi was benched from April 17, 2001, to April 24, 2001, and from May 1, 2001, to June 30, 2001. (Tr. 73). Shepherd gave Novinvest a two-week grace period and computed back wages only for the May-June dates listed above. (Tr. 73; PX 27). Viazovoi was benched again from November 2, 2001, to December 6, 2001, when he resigned. (Tr. 73).
38. According to Shepherd's calculations, the total amount of back wages due to Viazovoi is $9,830.74. (Tr. 73; PX 27). Shepherd gave Novinvest a $400 credit on expenses paid for Viazovoi's benefit. (Tr. 73; PX 27).
39. Shepherd told Hyken he could not assess the $5,000 investment fee against the H-1B nonimmigrant workers because employees have the right to leave employment at any time they wish to do so. (Tr. 72).
DISCUSSION
I. THE H-1B PROGRAM: OVERVIEW OF REGULATORY SCHEME
The H-1B program is a voluntary program which allows employers to employ nonimmigrant aliens admitted to the United States under H-1B visas to fill specialized jobs not filled by U.S. workers. 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n) and 1184(c). "The statute, among other things, requires that an employer pay an H-1B worker the higher of the actual wage or the prevailing wage, to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers." 65 Fed. Reg. 80,110 (2000). Under the INA, as amended by the Immigration Act of 1990 ("IMMACT"), Pub. L. No. 101-649, 104 Stat. 4978 (1990), and the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733 (1991), an employer wishing to employ an alien in a specialty occupation is required to file an LCA specifying the wage rates and working conditions with the DOL, which must certify the LCA in order for the INS to approve an H-1B visa for the alien. Final Rules implementing administration and enforcement of the H-1B program, found at 20 C.F.R. Part 655 Sub-parts H and I, were promulgated by the DOL effective January 19, 1995. 59 Fed. Reg. 65,646 etseq. (1994). Those regulations established "a system for the receipt and investigation of complaints, as well as for the imposition of fines and penalties for misrepresentation or for failure to fulfill a condition of the labor condition application." 20 C.F.R. § 655.700(a)(4)(1995).
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According to the regulations, "DOL is not the guarantor of the accuracy, truthfulness or adequacy of a certified labor condition application. The burden of proof is on the employer to establish the truthfulness of the information contained on the labor condition application." 20 C.F.R. § 655.740(c) (1995). Upon certification of an LCA, the regulations imposed on the employer the responsibility of developing and maintaining "sufficient documentation to meet its burden of proof with respect to the validity of the statements made in its labor condition application and the accuracy of information provided in the event that such statement or information is challenged." 20 C.F.R. § 655.710(c)(4) (1995). As originally passed, it was a violation of the Act for the employer to fail to provide notice of the LCA to its employees, to fail to meet the wage rates or working conditions set forth in the LCA, to misrepresent a material fact in the LCA or to fail to make the LCA and accompanying documentation available to the public. Employers violating the Act were subject to civil money penalties of up to $1,000 per violation, debarment for one year and payment of back pay to the H-1B employees. See Section 305(c)(3) of IMMACT.
The next significant change in the statutory provisions governing the H-1B program were the amendments contained in the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA"), Title IV of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999 (Pub. L. No. 105-277, 112 Stat. 2681 (1998)), signed into law on October 21, 1998. The ACWIA contained substantive and procedural changes to the H-1B program, including a temporary increase in the total number of H-1B visas which may be granted (effective fiscal year 1999, beginning October 1, 1998), protection against displacement of United States workers in case of "H-1B dependent employers" and expansion of the investigative authority of the DOL absent a complaint by an employee, none of which provisions impact the case at hand. See Sections 411, 412 and 413 (b), (c), (d) and (e) of the ACWIA. Section 413(a) of the ACWIA, however, increased enforcement and penalties in the H-1B program by substantially revising Section 212(b)(2)(C) of the INA, 8 U.S.C. § 1182(n)(2)(C). The amendments to Section 212(n)(2)(C) include, among other changes, a prohibition against "benching" an H-1B employee for business reasons or due to the employee's lack of a permit or license.4 The Administrator seeks to enforce this provision against Respondent.
1 Although Viazovoi testified that he received the email on December 26, 2001, the email is dated September 26, 2001, and was stipulated to in Stipulation 18, infra.
2 Although the parties stipulated to the amount of judgment, it is unclear from the record whether the amount was $1,666.66 (as typed) or $1,660.66 (as written out). The judgment is not included in the record, but the Administrator's brief uses the figure $1,666 for its calculations. In the absence of any contrary evidence, I have decided to use the figure typed out in the record: $1,666.66.
3 The record is unclear as to whether Viazovoi has paid $50.55 or $55. (Tr. 111).
4 This provision codified the anti-benching regulation previously found at 29 C.F.R. § 655.731(c)(5), enjoined from enforcement in National Ass'n of Manufacturers v. U.S. Dep't of Labor, 1996 WL 420868 (D.D.C. 1996). 65 Fed. Reg. 80,169 (2000).
5 That section originally provided: "The employer should not allow the nonimmigrant worker to begin work, even though a labor condition application has been certified by DOL, until INS grants the worker authorization to work in the United States for that employer." The same language has been retained in the new version, but additional language has been added.
6SeeAdministrator v. Yano Enter., Case No. 2001-LCA-0001 (Feb. 16, 2001).