A recent Administrative Law Judge (ALJ) decision, Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09), found an H-1B employer, Itek Consulting Inc. liable for back wages for periods of time when the employee was in nonproductive status. In its decision, the ALJ references the pertinent part of the Regulations, writing “Employers are required to pay H-1B workers on the date on which the worker “enters into employment” with the employer. 20 C.F.R. § 655.731(c)(6). Employers are required to pay H-1B employees the required wage for both productive and nonproductive time. Employment-related nonproductive time, or “benching,” results from lack of available work or lack of the individual’s license or permit. 8 U.S.C. § 1182(n)(2)(c)(vii); 20 C.F.R. § 655.731(c)(7)(i). An employer need not pay wages for H-1B visa workers in nonproductive status due to conditions unrelated to employment or which render the employee unable to work. 20 C.F.R. § 655.731(c)(7)(ii).”These Regulations are particularly important given the state of the economy and the fact that many employees are now on the bench.The ALJ also found that an employee did not need a SSN to begin work, only evidence of having applied for one, to be considered in an employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. For full decision see: http://www.oalj.dol.gov/Decisions/ALJ/LCA/2008/WAGE_and_HOUR_DIVISI_v_ITEK_CONSULTING_INC_2008LCA00046_(MAY_06_2009)_114836_CADEC_SD.PDF
Archive for May, 2009
ALJ finds H-1B Employer Liable for Back Wages for Benched Employee
Thursday, May 14th, 2009Old LCA Operational until 6/30/2009
Wednesday, May 13th, 2009The Department of Labor has informed AILA liaison that they will keep the old LCA system operational through June 30, 2009. The DOL has implemented fixes to many of the issues brought to their attention by AILA and other stakeholders thus far. The decision to keep the old LCA system operational will allow the DOL to continue to evaluate issues brought to their attention and to give users additional time to become familiar with the system. The new LCA system became operational on April 15, 2009.
ARB finds Pegasus a Willful Violator and Assesses Civil Penalties
Monday, May 11th, 2009The Dept. of Labor’s Administrative Review Board (ARB) has released a decision, reversing the Administrative Law Judge’s (ALJ) decision, finding that Pegasus Consulting Group, an IT consulting company, had “willfully violated the INA’s H-1B wage requirements”, by failing to comply with the H-1B program’s requirements. The ARB found that the evidence presented showed that Pegasus knew of its obligation to pay its H-1B employees in non-productive status or to terminate their employment. This knowledge and their failure to comply with these requirements, showed a “knowing failure” to comply with the H-1B wage requirements and, therefore, a “willful” failure to comply.” As such, the ARB found Pegasus liable of willfully violating the INA and assessed civil penalties (on top of the back wages the ALJ already previously assessed) in the amount of $5000. For full decision see: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/05_086.LCAP.PDF
This decision is telling, particularly for IT consulting companies whose employees are in non-productive status. The holding shows that even if a company relies on an employment contract, which Pegasus did in their argument, and did take some steps towards compliance, this is not enough to protect a company from being assessed civil penalties for noncompliance.
Federal Appeals Court on Ability to Pay
Friday, May 8th, 2009In a decision released April 23, 2009, the US Court of Appeals for the Seventh Circuit questioned the USCIS standards on the issue of the ability to pay. The Court stated, ” We were thrown by the government’s brief”. The Court stated that the position of the USCIS “makes no sense” and was even renounced by the government’s own lawyer during oral arguments. The Court pointed out that the USCIS reliance on net income and net current assets misses the distinction between principles of accounting and cash flow. The Court stated that, ” the Department of Homeland Security must not take too static a view of a business firm’s decision to purchase an additional input, whether of capital or labor.” Although the outcome in this case, was ultimately a denial of the petition, the discussion by the Court of the proper ability to pay standards was enlightening.
Of interest to start-up staffing companies with client contracts in place was the Courts favorable references to Matter of Sonegawa and its progeny. This type of reasonable and rational decision from a Federal Court, should give businesses that have been aggrieved by aribtrary USCIS decisions, some encouragement in pursuing litigation against bad decisions. Although the time to achieve relief may be lengthy, relief can be achieved and more companies must be willing to litigate against bad USCIS decisions or else the flood of bad decisions based upon bad policy will continue. When enough Federal Court decisions smack around the USCIS, it is just possible that USCIS HQ in Washington will take note and reign in the out of control Service Centers.
Please click here for a PDF copy of the decision: Construction & Design v. USCIS, Decision No. 08-2461 (7th Cir Ct. App)
Another blow to EB-2 India…
Friday, May 8th, 2009With sadness, we post the June 2009 Visa Bulletin just released by the U.S. Department of State. Most of the bulletin is the same as May 2009 — EB-3 remains “unavailable” for all countries and EB-2 China is still February 15, 2005. However there are further set backs for EB-2 India which rolled back approximately 4 years to a priority date of January 1, 2000!
http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html
Maybe 4 years in the U.S. military is not so bad after all!?
Interested in a fast track to US Citizenship? Try the US Military…
Wednesday, May 6th, 2009The Pentagon recently announced plans to open military enlistment to nonimmigrants legally present in the United States. Previously only U.S. Citizens and Permanent Residents could enlist in the military. However the government now recognizes a specific need in strategic areas, languages, and skill sets and will actively recruit students and professionals in temporary nonimmigrant status who are willing to joint the U.S. Army.
Specific languages needed by the Army include: Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil are in demand. If qualified and accepted, a nonimmigrant would be required to serve a period of 4 years in professional occupations or 3 years of in a medical occupation and citizenship would be granted through this term of service. If the term of employment is not completed, citizenship would be revoked.
Any persons potentially qualifying should contact their local recruitment office for more information. For additional details on this new program, please review the following articles.
http://www.latimes.com/news/local/la-me-immigrant-recruits4-2009may04,0,5003914.story