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Individual H-1B Wage Complaint Does Not Authorize Government to Initiate Company-Wide Investigation, According to Judge

Hoboken NJAn administrative law judge (ALJ) at the U.S. Department of Labor (DOL) recently reversed a ruling finding an employer liable for wage violations affecting workers with H-1B visas. Administrator v. Volt Management Corp., No. 2012-LCA-00044, order (DOL, Jun. 16, 2016). The DOL’s Wage and Hour Division (WHD) had initiated an investigation of the respondent after receiving a grievance from an H-1B worker. The investigation grew to include 80 H-1B employees and resulted in a finding that the respondent had underpaid them by hundreds of thousands of dollars. The ALJ found that the WHD exceeded its authority by expanding its investigation. It reversed the entire ruling and penalty, except for the award of damages to the individual complainant.

A limited number of H-1B temporary worker visas are available each fiscal year for workers in “specialty occupations,” which typically require an advanced degree or specialized training. 8 U.S.C. § 1101(a)(15)(H)(i)(b). In order to obtain an H-1B visa for a prospective employee, the employer must petition U.S. Citizenship and Immigration Services (USCIS) and file a labor certification application (LCA) with the DOL. The LCA must attest that the worker will receive comparable wages to others in similar positions and that hiring a nonimmigrant worker will not adversely affect working conditions for U.S. citizens and lawful permanent residents. Id. at § 1182(n)(1). If the DOL approves the LCA, it issues a labor certification to the employer, which forms part of the petition to USCIS.

Federal immigration law gives the DOL authority to investigate employers for violations of the conditions of their labor certifications under certain circumstances, including a grievance filed by an H-1B visa holder. Id. at § 1182(n)(2)(A). The DOL can initiate a random investigation against an employer within five years of the date the employer is found to have violated certain terms of its labor certification. Id. at § 1182(n)(2)(F). It can also initiate an investigation of an employer with H-1B workers if it “has reasonable cause to believe that” the employer has violated H-1B wage regulations. Id. at § 1182 (n)(2)(G)(i).

The complainant in Volt filed a grievance with the WHD in September 2009, alleging that the respondent, his employer, had failed to pay him from approximately June 30, 2009 until August 18, 2009, the date he was terminated. The WHD initiated an investigation, which “ballooned to encompass far more than what [the complainant] alleged.” Volt, order at 2. The WHD ultimately determined that the respondent owed $330,000 in back wages to 80 employees.

The ALJ reversed almost all of the WHD’s findings, noting that the statute “ limit[s] the circumstances in which the [DOL] may expand an investigation beyond a grievance an individual H-1B worker presents.” Id. The WHD was authorized to investigate the complainant’s specific grievance under § 1182(n)(2)(A), but the ALJ ruled that none of the factors identified in the statute that would allow the WHD to expand its investigation were present. It allowed the WHD’s findings for the complainant to stand, but it reversed everything else.

Immigration attorney Samuel C. Berger represents immigrants and prospective immigrants, family members of immigrants, and employers of immigrants in New York City and Northern New Jersey. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with an experienced and knowledgeable immigrants’ rights advocate.

More Blog Posts:

Employer’s Failure to Notify Federal Government of H-1B Employee’s Termination Results in Penalty of Nearly $183,000, New York & New Jersey Immigration Lawyer Blog, August 11, 2016

Lawsuit Seeks Transparency Regarding Selection of H-1B Visas, New York & New Jersey Immigration Lawyer Blog, June 9, 2016

New York City Human Rights Agency to Issue Certifications for U and T Visas, New York & New Jersey Immigration Lawyer Blog, May 12, 2016

Photo credit: D Ramey Logan (Own work) [CC BY 4.0], via Wikimedia Commons.