Chelladurai V. Infinite Solutions, Inc., 2003-LCA-4 (ALJ Feb. 7, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Issue Date: 07 February 2003

CASE NO. 2003-LCA-00004

In the Matter of:

NALINABAI P. CHELLADURAI,
    Complainant

versus

INFINITE SOLUTIONS, INC.
    Respondent

This matter arises under the Immigration and Nationality Act, as amended by the Immigration Act of 1990 and amended in 1991, 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), (Act) and the regulations promulgated thereunder at 20 C.F.R. Part 655, Subparts H and I. Complainant, Nalinabai Chelladurai ("Alien"), filed a complaint with the Wage and Hour Division of the Employment Standards Administration, United States Department of Labor, asserting that she was not paid the prevailing wage rate by Infinite Solutions, Inc. ("Respondent" or "ISI"), as required by a Labor Condition Application ("LCA") and 20 C.F.R. Sec. 655.731.

The Act defines various classes of aliens who may enter the United States for prescribed periods of time and for prescribed purposes under various types of visas. 8 U.S.C. Sec. 1101(a)(15). One class of aliens, known as "H-1B" workers, is allowed entry to the United States on a temporary basis to work in "specialty occupations." 8 U.S.C. Sec. 1101(a)(15)(H)(i)(B); 20 C.F.R. Sec. 655.700. An employer seeking to hire an alien in a specialty occupation on an H-1B visa must obtain certification from the U.S. Department of Labor ("Department") by filing an LCA before the alien is given an H-1B visa by the Department of State.

An LCA filed by an employer must set forth, inter alia, the prevailing wage rate, working conditions, including hours, shifts, vacation periods, and fringe benefits. 20 C.F.R. Sec. 655.731 and 655.732. Upon certification of the LCA by the Department, the employer is required to pay the prevailing wage and implement the working conditions set forth in the LCA. Id.

The Complainant is a native of India who at the time the LCA was filed was residing in the United States on an H-1B visa. ISI filed an LCA requesting that Complainant be hired as a senior programmer analyst. The Alien's complaint was filed pursuant to 20 C.F.R. Sec. 655.805(d) which provides that any aggrieved person may file a complaint alleging a violation by an H-1B employer of the provisions of subparagraph (a) which include failing to pay the wage rate required by Sec. 655.732, which is the wage rate set forth in the LCA. The Administrator, in the person of the District Director, Wage and Hour Division of the Employment Standards Division, pursuant to Sec. 655.815 found a violation in that ISI had failed to pay the Complainant wages as required in violation of Sec. 655.731. No civil money penalty was assessed. ISI paid back wages in the amount of $2,273.27 found due to the Alien. See October 21, 2002 letter from District Director, Wage and Hour Division, to Respondent, at ALJ Ex. AA. {It is noted that the Alien testified that she had received this amount by check from ISI but had not negotiated the check as she disagreed with the amount and was not sure she should cash it during this appeal. See Transcript of the hearing ("T"), p. 59}. Complainant appealed the determination to the Office of Administrative Law Judges on November 5, 2002. See Sec. 655.820. By Notice dated November 21, 2992, a hearing was scheduled for December 11, 2002 in Sacramento, California. No formal or written appearance has been made herein by counsel for either party. ISI appeared through its president, Ganapathy Murugesh. Testimony from the Complainant was heard on December 11, 2002, as well as the direct testimony of Mr. Murugesh. The cross-examination of Mr. Murugesh was held on December 23, 2002 in Sacramento, California. Additionally, testimony from two additional witnesses called by the Respondent, Rani Daisy Murugesh and Joseph Tassinari, was heard on December 23, 2002. ALJ Exhibits 1 and AA as well as Complainant's Exhibits A1 through A5, A12, A13, and 1 through 53, and Respondent's Exhibits A through Z were received into evidence. Upon joint request of the parties, each party was permitted to submit a post trial memorandum which each party submitted on January 27, 2003.

Complainant was working as an H-1B employee of Adeo Consulting in the Los Angeles, California area when she received a layoff notice from Adeo in early December of 2000, indicating that the facility at which she was working in the Los Angeles area would be closed down effective in January of 2001 (T, p.32-34 ) Apparently due to conversations between Complainant's father and Mrs. Murugesh's father, both of whom reside in India, ISI agreed to file an application to become the H-1B employer of Complainant (T, pp. 100-101; 147-148; 249; 311-312). Although the parties disagree on whose suggestion, Complainant did in fact move from Los Angeles to Sacramento where she moved in with Mr. And Mrs. Murugesh on or about January 3, 2001 (T, pp. 54-55; 247; 312-313). Even prior to Complainant moving to Sacramento, Mr. Murugesh filed an LCA listing ISI as the employer with Complainant to be hired as a senior programmer analyst at an expected annual salary of $65,000. (Resp. Ex. L ). The LCA was approved by the Department effective April 9, 2001 (Resp Ex. K). ISI "terminated" employment of Complainant on May 21, 2001, as ISI had been unable to acquire work for the Complainant (T, p137).

Complainant seeks wages from January 3, 2001 through April 16, 2001, when the Administrator found she was first entitled to wages, arguing that the recently expanded "portability provision" of the Act entitles her to be paid from the first day she moved in with Mr. and Mrs. Murugesh on January 3, 2001, rather than from the approval date of the LCA. The American Competitiveness in the Twenty-First Century Act of 2000, Public Law 106-313, passed in October of 2000, provided for increased portability of H-1B status by amending Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184), to add the following new subsection:

(m)(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(B) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

   (2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien–

(A) who has been lawfully admitted into the United States;

(B) on whose behalf an employer has filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.

Complainant, in support of her argument that this portability option should apply in her case, points out that she was present at ISI's offices on a number of occasions prior to April 16, 2001, at which times she attended a computer class (T, pp. 67-68; 383); sent and received e-mails soliciting potential work for herself as an ISI employee (T, pp. 49; Compl. Ex. 18-21; 25; 33-39; 43); and even gave advice on one project with which ISI was allegedly having problems (T, pp. 37-38). Complainant contends that these various activities show that she was, throughout the period from January 3, 2001 through April 16, 2001, an employee of ISI and thus entitled to her wages as set forth on the LCA (T, pp. 37-42). The witnesses called on behalf of ISI dispute that any of these activities were performed as an "employee" of ISI but rather were efforts to locate work for Complainant to perform. In short, the ISI witnesses all testified that the LCA was filed as a favor to the Complainant so she could remain in the United States and upon the hope that suitable work for the Complainant could be found, even if that work made no profit for ISI (T, pp.395-396; Compl. Ex. 43). There is no dispute that no such work for the Complainant was ever found up until May 21, 2001, when ISI "terminated" Complainant's employment.

Complainant's appeal to the newly enacted portability provisions must fail in this instance for the simple reason that there was no "work" available for the complainant to perform at any point eventually leading to the "termination" of the employment by ISI a little over a month after the H-1B application was approved. All of the activities cited by complainant of sending e-mails, interviewing, and taking a computer course were activities aimed at finding work for the complainant. These activities were not performed as "work" on behalf of ISI. While the offer letter to complainant by ISI indicated an expected date of employment of January 2, 2001, the letter also pointed out that certain medical benefits would not commence until complainant had actually completed a full month of employment and gives an example of a starting date in March of 2001 (Resp. Ex. C). Similarly, while the H-1B application gives a date of January 2, 2001 for expected employment, the letter forwarding the application to Immigration and Naturalization Service, dated December 14, 2000, clearly states that the employment is to begin "only after approval of this petition and the issuance of an H-1B visa" (Resp. Ex. L). Mr. Murugesh testified that had he intended to take advantage of the portability provision, he would have so stated in the application (T, p. 160).

The facts simply do not support the existence of, nor a common intent to create, an employment relationship at any point at least prior to the approval of the H-1B application. The most telling indicium of the lack of an employment relationship is the testimony of claimant with regard to lack of agreement on a salary. Although the original letter from ISI offering potential employment gave a salary of $60,000 per year, complainant testified that while she signed this agreement, she did not agree to this salary figure but rather left salary open for negotiation. She did sign the agreement so that her H-1B application would be filed by ISI (T, p. 78). Indeed, complainant several times in her testimony reiterated that she and ISI never reached any agreement with regard to her salary, but rather kept salary "as an open negotiation" (T, pp.42; 46). Further, no demands for any pay by complainant are evident in the record until near mid-May when she apparently first suggested that she should receive some payment (T, p. 163; Resp. Ex. K). At that point, ISI made a first salary payment to complainant for the period of May 1 through 21, 2001, in the net amount of $2,251.89, which check was received and negotiated by complainant (T, pp. 50-52). Thereafter, ISI "terminated" complainant's employment as no work for her had been located although complainant refused to come into the office or speak with ISI as she apparently was expecting to be terminated (T. pp. 61; 137; 228-230).

There was a very obvious reason why salary was never agreed upon by the parties and that is because ISI was never able to locate a job for the complainant. However, by agreeing to file the H-1B application on her behalf, ISI undertook the role of complainant's employer once the application was approved including subjecting itself to the regulations governing H-1B employees. Specifically, ISI became subject to 20 C.F.R. 655.731(a)(7)(i) which requires payment of wages to an H-1B worker in circumstances where the "H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work) . . . " Accordingly, complainant's "employment" with ISI began with the first full pay period following approval of the H-1B application, on April 16, 2001, by virtue of this regulation requiring payment of wages to an H-1B worker in a nonproductive status. Since the parties never agreed upon a salary, according to the testimony of both parties, the appropriate wage to be paid is the prevailing wage rate of $54,558.40, as determined by the Administrator, and taken directly from the LCA filed by ISI (Resp. Ex. L). Under the circumstances, the undersigned agrees with the Administrator's determination that no civil money penalty should be assessed against ISI and that ISI owes an additional amount of back pay to the complainant in the amount of $2,273.27, for the period of April 16 through 30, 2001, which funds have previously been tendered by ISI to the complainant, as noted above.

IT IS HEREBY ORDERED THAT

1) The Administrator's Determination, as set forth in the letter dated October 21, 2002, ordering Respondent to pay to Complainant the additional sum of $2,273.27 in back wages, and assessing no civil money penalty against Respondent is hereby affirmed.

      RUSSELL D. PULVER
      Administrative Law Judge