In deciding a motion for summary decision, the court must consider all of the materials submitted by both parties, drawing all reasonable inferences in a matter most favorable to the non-moving party. F.R.C.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). A court shall render summary judgment when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the party against whom the motion is made. See LaPointe v. United Autoworkers Local 600, 8 F. 376, 378 (6th Cir. 1993); U.S. v. T.RW, Inc., 4 F.3d 417, 423 (6th Cir. 1993), cert. denied, 114 S.Ct. 1370 (1994).

The issues presented for summary disposition in the present case are:

I. Respondent's status as an "employer" under the H-1B regulations;
II. Applicability of the ACWIA amendments to the H-1B regulations;
III. Respondent's status under the ACWIA amendments;
IV. Whether Respondent violated the applicable prevailing wage rate requirements of the H-1B regulations.

I. RESPONDENT'S STATUS UNDER THE H-1B REGULATIONS

   In order to employ a non immigrant pursuant to the H-1B visa program, 8 U.S.C. §1182(n)(1)(A), an entity must be designated as an "employer." In its cross motion for summary judgment, Respondent contends that it is not an employer under these regulations and, thus, is not subject to the prevailing wage rate requirements. Upon review of the evidence, this Court finds that this claim has no merit. First, neither party contests that an employer/employee relationship existed between Respondent and Dr. Hasan. Second, the mere fact that Respondent is a government agency does not preclude it from being an employer under the H-1B regulations. Neither the regulations nor the amendments contain any prohibition against government agencies being "employers." Additionally, Respondent voluntarily subjected itself to all the requirements of the H-1B program by submitting an LCA on behalf of Dr. Hasan and declaring itself Dr. Hasan's "employer." This Court finds that it cannot now contest its status under the regulations when it consistently proclaimed itself an "employer" in order to take advantage of the H-1B program. Therefore, Respondent is to be considered an "employer" under the regulations and is subject to the applicable prevailing wage rate requirements contained within.

II. APPLICABILITY OF THE ACWIA

   In the order dated February 9, 1999, this Court found that the American Competitiveness and Workforce Improvement Act of 1998 and its amendments (herein "ACWIA") applies to this case. The ACWIA amendments to the H-1B regulations apply to labor condition applications filed on or after its enactment date of October 21, 1998. The amendments apply retroactively to applications filed before that date, if the computation of the prevailing wage level is subject to an administrative or judicial determination that is not final as of such date. See 65 Fed. Reg. 80110 (2000); 8 U.S.C. §1182.

   The LCA in this case was filed on August 30, 1996 and re-filed in October 1996. Therefore, the ACWIA applies only to the extent that the prevailing wage computation is still subject to an administrative or judicial determination. Upon review of the evidence, this Court finds that the prevailing wage issue is still subject to a judicial determination. Although Respondent does not challenge the exact amount of the prevailing wage rate under the applicable State Employment Security Agency (herein "SESA") provision, it does challenge the applicability of the computation requirements under such provisions. Conversely, while the Employment and Training Administration's (herein "ETA") determination of the prevailing wage rate under the SESA computation is final pursuant to 20 C.F.R. § 655.731, the applicability of the computation requirements to Respondent is not. A determination letter

was issued in January, 1998 regarding Respondent's failure to pay Dr. Hasan under the terms of the H-1B program. The case was referred to this Court and remanded so that Respondent could challenge the SESA prevailing wage rate pursuant to 20 C.F.R. § 655.731. The ETA subsequently notified Respondent that its appeal was denied, because it did not dispute the accuracy of the prevailing wage rate as determined by SESA. The ETA made this determination on April 29, 1998, and the case was set for hearing before this Court on February 9, 1999. Therefore, the issue of applicability of the computation requirements of the prevailing wage rate was not resolved before the enactment of the ACWIA in 1998. As a result, the ACWIA amendments apply retroactively and will govern the merits of the case.

III. RESPONDENT'S STATUS UNDER THE ACWIA AMENDMENTS

   The ACWIA, Title IV of P. L. 105-277, amended 8 U.S.C. §1182, and created a modified computation for prevailing wage rate requirements under the INA. The ACWIA amendment states:

    In computing the prevailing wage level for an occupational classification in an area of employment for purposes of subsections (n)(1)(a)(i)(ii) and (a)(5)(a) in the case of an employee of

(A) an institution of higher education (as defined in section 1001(a) of Title 20), or a related or affiliated nonprofit entity; or

(B) a nonprofit research organization or a Governmental research organization, the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment. 20 C.F.R. § 655.731 (a)(2)(viii) (2000); 8 U.S.C. §1182(p)(1).

Therefore, in order to take advantage of this amendment, Respondent must be either an institution of higher learning, affiliated with such an institution, a nonprofit research organization, or a Government research organization. Neither party has presented sufficient evidence as to whether Respondent meets the requirements for an institution of higher learning. However, upon examination of the evidence, this Court finds that Respondent does engage in sufficient medical research activities to be considered a governmental research organization under this amendment. 20 C.F.R. 656.40(c) defines a governmental research organization/nonprofit research organization as:

(c)(1)(iii) A research organization that is either a nonprofit organization or entity that is primarily engaged in basic research and/or applied research, or a U.S. Government entity whose primary mission is the performance or promotion of basic and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mine. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities. 20 C.F.R. 656.40(c)(1)(iii) (2000).

Both parties submit that Respondent does engage in research in addition to providing medical services to veterans. Under 38 U.S.C. 7303 the Department of Veterans Affairs (herein

"DVA") is authorized to carry out a program of medical research in connection with the provision of medical care and treatment of veterans. See Attachment A of "Administrator's Brief in Support of Renewal of Summary Judgment,"(February 2, 2001), Administrator, Wage & Hour Division v. Dallas V.A. Medical Center, 1998-LCA-3. The evidence indicates that approximately two to five percent of the DVA funding allotted to Respondent is appropriated for research. See Id. Although these figures may be small in light of Respondent's total funding, the evidence indicates that this funding is allocated solely for research purposes and is for the purpose of effectuating the provision of medical care and treatment of veterans, Respondent's primary mission. Therefore, Respondent is properly included within the status of a government research organization for purposes of the ACWIA amendments. As a result, it is entitled to the modified prevailing wage rate formula.

   Upon consideration of the evidence presented by both parties and the requirements of the summary process, this Court finds as follows:

I. Respondent is Dr. Hasan's "employer" under the H-1B regulations;

II. The ACWIA of 1998 and its amendments are applicable to this case; Under the ACWIA amendments, Respondent is properly classified as a government research organization;

III. Since the prevailing wage rate under said amendments has not been computed, a violation of the H-1B regulations cannot be determined. Therefore, this case is remanded, pursuant to 20 C.F.R. §655.840(c), to the Employment Standards Administration of the Wage and Hour Division for determination of the appropriate prevailing wage rate and whether Respondent failed to comply with that figure.

   Entered this 19th day of June, 2001, in Metairie Louisiana.

      JAMES W. KERR, JR.
      Administrative Law Judge

JWK/sls