Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 23 February 2004 Case No.: 2003-LCA-00014
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In the Matter of:
ADMINISTRATOR, WAGE AND HOUR
DIVISION, U.S. DEPARTMENT OF LABOR
Prosecuting Party,
v.
TEACHERS' PLACEMENT GROUP, et al.,
Respondent.
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DECISION AND ORDER
This matter arises under the Immigration and Nationality Act H-1B visa program, 8 U.S.C. Sec. 1101 (a)(15)(H)(I)(b) ("Act") and the implementing regulations at 20 C.F.R. Part 655, Subparts H and I, 20 C.F.R. § 655.700 et seq.
The Administrator of the Wage and Hour Division ("Administrator") issued a determination letter pursuant to 20 C.F.R. § 655.815 to Teacher's Placement Group Inc., Michael Vanjani, and Radha Vanjani ("Respondents") on February 5, 2003 asserting that Respondents willfully failed to pay required wages to fifteen H-1B non-immigrant aliens who were brought to the United States to be employed as teachers in the Newark Public School System; discriminated against those teachers; and failed to comply with the provisions of subpart H or I of 20 C.F.R. § 655.700, more specifically, failed to establish a prevailing rate in compliance with the regulatory provision for a Labor Condition Application. The determination letter also assessed a civil penalty against Respondents for the first two listed violations.
On February 7, 2003, the Respondents contested the Administrator's determination and requested a hearing in accordance with 20 C.F.R. § 655.820. A hearing was held in New York City, New York on June 9, 10, 2003. Post hearing briefs were received from the Administrator on October 17, 2003 and from the Respondents on October 21, 2003. The Administrator filed a response to the Respondents' brief on October 31, 2003. The decision in this matter is based on the testimony at the hearing, all documentary evidence admitted into the record at the hearing, and the post hearing submissions by the parties.1[Page 2]
1 The documentary evidence admitted at the hearing includes Administrative Law Judge Exhibit 1 (ALJx. 1), Administrator's Exhibits (Ax.) and Respondents' Exhibit 1 (Rx 1.) The transcript of the hearing is cited as "Tr." and by page number.
3 Coleman testified: "I made it clear from the very beginning that Newark Public Schools did not want to get into the sponsorship program with foreign teachers. That's – that was something we did not want to do. We didn't have the funds. It was not a program that we were familiar with. This was a brand new program concept, the idea of bringing foreign teachers in. So, the worse case scenario was we did not want to get into sponsoring teachers – you know, someone else handle it." Tr. 288, 289.
4 In a further effort to accommodate Newark's withholding plan, TPG hired a CPA to assist the teachers prepare their income taxes so they would not pay taxes on income prior to the 25% deduction. Tr. 198.
5 Coleman testified that 25 to 40% is a standard recruitment fee. Tr. 317.
6 "Authorized deductions" is defined at 20 C.F.R. § 655.731(c )(2) for the purpose of the satisfaction of the employer's H-1B wage obligation.