ARB CASE NO. 01-080
ALJ CASE NO. 2001-LCA-8
DATE: November 25, 2003
In the Matter of
U.S. DEPARTMENT OF LABOR,
ADMINISTRATOR, WAGE & HOUR
DIVISION, EMPLOYMENT STANDARDS
ADMINISTRATION,
PETITIONER,
v.
PRISM ENTERPRISES OF CENTRAL
FLORIDA INC., d/b/a FUTURE AUTOMATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioner: Steven J. Mandel, Esq., Paul L. Frieden, Esq., Joan Brenner, Esq.,
U. S. Department of Labor, Washington, D.C.
For the Respondent:
James R. Lavigne, Esq., LaVigne, Coton & Associates,Orlando, FL
FINAL DECISION AND ORDER
This case concerns the obligations of an employer to a nonimmigrant employee working in the United States under the H-1B visa program of the Immigration and Nationality Act of 1952 (INA), as amended, 8 U.S.C.A. §§1101, 1182, and 1184 (West 1999 & Supp. 2003). After completing a complaint investigation, the Administrator of the Wage and Hour Division (Administrator) determined that Prism Enterprises (Prism) violated the applicable regulations, inter alia, by failing to pay the required wage to Robert Blake (Blake), its H-1B employee. The Administrative Law Judge (ALJ) adopted the Administrator's findings with slight modifications. With the exceptions noted below, we affirm the ALJ's decision.
BACKGROUND
A.Statutory and Regulatory Framework
An H-1B visa allows an alien to obtain temporary admission to the United States to perform services in a specialty occupation. See 8 U.S.C.A. § 1101(a)(15)(H)(i)(b); 20 C.F.R. § 655.700(c) (2000). An employer seeking to hire an alien on an H-1B visa must first obtain certification by filing a Labor Condition Application (LCA) with the U.S. Department of Labor (Department). 20 C.F.R. § 655.730(a). On the LCA, the employer must provide specific information including the number of aliens to be hired, the occupational classification, the required wage rate to be paid, the prevailing wage, the source of such wage data, the date of need and the period of employment. 20 C.F.R. § 655.731. Only after the employer receives Department certification will the employee be issued the documents needed to obtain the H-1B visa. See 20 C.F.R. § 655.700(b).
[Page 2]
The employer is required to pay an H-1B worker a wage rate which is at least the higher of its actual wage rate and the locally prevailing wage for the occupation. See 8 U.S.C.A. § 1182(n)(1)(A); 20 C.F.R. § 655.731(a). The "wage rate" is the remuneration (exclusive of fringe benefits) to be paid to the H-1B employee, stated in terms of amount per hour, day, month, or year. Id. at § 655.715.
B. Procedural History
Robert Blake, a British citizen, is a computer engineer. He and his family came to Florida for a vacation in November 1998. ALJ's Decision and Order (D. & O.) at 9. Through First Point, an organization that assists aliens to obtain employment in the United States, Blake met with Shallander Moman (Moman) in Florida during Blake's vacation period. Id. Moman is the president of Prism Enterprises, a computer services company located in Winter Garden, Florida. Id. at 3-4. Blake and Moman discussed Blake's possible employment at Prism as well as Blake's possible investment in and eventual partnership with Moman in Prism. Id. at 7, 9.
After returning to England, Blake and Moman exchanged e-mails, phone calls, and various draft agreements regarding the nature of their possible work relationship. Id. at 4; see Exhs. 1-14, R21. The parties agreed that Blake should come to the United States under an H-1B visa. See D. & O. at 3-4. Therefore, during the March-April 1999 period, Moman signed and filed the LCA and other necessary documents to obtain an H-1B visa for Blake. Id. Blake received his visa in May and arrived in the United States in September 1999. Exh. R20 at p. 11; Tr. 48. He immediately began work for Prism as a computer engineer, and upon reporting to work, Blake gave Moman a check for $30,000. D. & O. at 6; Tr. 48.
In February 2000, Blake resigned from Prism and filed a complaint with the Department alleging that Prism had not paid him the proper wages. D. & O. at 6, 9. The Administrator investigated Blake's allegations, and by letter dated January 11, 2001, notified Prism that it had violated the H-1B regulations by, among other things, failing to pay Blake the "required wage rate." D. & O. at 2. To remedy the matter, the Administrator ordered Prism to pay back wages to Blake in the amount of $41,488.79. Id. Prism denied the charges and requested a hearing before a Department Administrative Law Judge. Id. The ALJ held the hearing on March 8, 2001, in Orlando, Florida. Id. By Order dated June 22, 2001, the ALJ ordered Prism to pay Blake back wages but in an amount significantly reduced from that ordered by the Administrator. D. & O. at 16. The Administrator petitioned this Board to review the ALJ's decision.1
1 Prism also petitioned for review of the ALJ's decision. However, by Order of September 28, 2001, the Board withdrew its acceptance of the company's petition because Prism's opening brief was untimely filed without just cause.
2 The Administrator used the "prevailing wage" rate in calculating the back wages. No "actual wage" figure was determined for Blake's job because, as the ALJ stated, Prism's only other staff consisted of "two short term" employees. D. & O. at 13; Exh. C2.
3 The only issue the Administrator appealed was the ALJ's determination that the $30,000 need not be repaid. Admin'r. Petition for Review, July 23, 2001.
4 Blake disputed that this was the final version of the agreement and proffered a considerably shorter version which also contained the signature of both parties. D. & O. at 5-6.