Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002
(856) 486-3800
Issue Date: 30 April 2004
CASE NO.: 2004-LCA-00020
In the Matter of
ADMINISTRATOR, WAGE AND HOUR DIVISION
Prosecuting Party
v.
SIRIS SOFT LIMITED CORPORATION
Respondent
DECISION AND ORDER APPROVING CONSENT FINDINGS
This matter arises under the Labor Condition Application provisions of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1101 and § 1182 ("the Act"), and the implementing regulations set forth at 20 C.F.R. Part 655, et seq. Under the Act, an employer may hire nonimmigrant 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. Such workers are issued H-1B visas by the Department of State upon approval by the Immigration and Naturalization Service ( or "INS"). 20 C.F.R. § 655.705(b). In order for the H-1B visa to be issued, the employer must file a Labor Condition Application (or "LCA") with the Department of Labor, and detail, 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 732. Once the Department of Labor certifies the LCA, INS can then approve the nonimmigrant's H-1B visa petition. 8 U.S.C. § 1101(a)(15)(H)(i)(b); 20 C.F.R. § 655.700(a)(3).
Workers hired under H-1B visas must pay prevailing wages pursuant to 20 C.F.R. § 655.805(a)(2). Employers are required to comply with reporting requirements set forth at 20 C.F.R. §§ 655.730 and 655.731; notice posting requirements set forth at 20 C.F.R. § 655.805(a)(5); and record retention requirements of 20 C.F.R. §§ 655.731(b)(, 655.738(e), 655.760(c).
In the instant matter, Siris Soft Limited Corporation ("Respondent") secured H-1B visas for several employees. In a Determination issued on February 4, 2004, the Administrator of the Wage and Hour Division ("Administrator") concluded that Respondent was in violation of the Act by failing to pay required wages; misrepresenting a material fact on the labor condition application; failing to provide required notice of the filing of the application; and failing to maintain required documentation. The Administrator concluded that back wages were due to one employee, and ordered payment thereof. The Administrator further ordered Respondent to comply with regulations regarding documentation of actual wage and ordered future compliance with notice posting and reporting requirements. In correspondence dated February 11, 2004, Respondent disputed the findings and requested a formal hearing before the Office of Administrative Law Judges ("OALJ)". The matter was assigned to me for hearing, which was scheduled.
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On March 24, 2004, the parties filed Consent Findings which were signed by both parties and a request was made that an Order be issued to dispose of this case.
The parties' agreement may be summarized as follows: the Respondent has agreed to pay back wages in the amount of $7,500.00 due to Venkata Rama Narasimham Sigi no later than April 30, 2004. Respondent further admits that it misrepresented a material fact on three labor condition applications and agreed to pay the civil money penalty assessed pursuant to 20 C.F.R. §655.810(b)(2)(ii). The penalty of $1,300.00 has already been paid to the Administrator. Respondent has agreed to provide notice of the filing of three labor condition applications; to accurately specify the place of intended employment, and to maintain copies of required documentation regarding actual wages in compliance with the regulations.
Respondent also consents to absolute, conclusive and total disqualification for a period of one (1) year from approval of any petitions filed by, or on behalf of, the Respondent pursuant to section 204 or section 214( c) of the Immigration and Nationality Act (8 U.S.C. §1182(n)). The time period for disqualification commences as of the date of issuance of this Order.
Further, the parties have requested dismissal with prejudice of the enforcement proceedings brought by the Complainant.
Upon review of the record, the Consent Findings are approved. The agreement constitutes full and final resolution of this matter. IT IS ORDERED that:
1. This Order shall have the same force and effect as an Order made after a full hearing;
2. The entire record upon which this Order is based shall consist solely of the Notice of Determination and the Stipulated Consent Findings and Order;
3. Any further procedural steps before the Office of Administrative Law Judges are hereby waived;
4. All rights to challenge or contest the validity of this Order which has been entered into in accordance with the Consent Findings are hereby waived, and;.
5. Each party agrees to bear any costs that it incurred in relation to the instant proceeding.
IT IS FURTHER ORDERED that this matter is hereby dismissed. This Decision constitutes the Final Order of the Secretary.
