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Hurtling (and Hurting) Down the H-1B Road: Part 4 of 4by Angelo A. Paparelli
Equal-Benefits Opportunity If the car breaks down,The No-Benching Obligation ACWIA and the DOL's Interim Final Rule prohibits an H-1B employer from failing to pay the required wage during non-productive periods unless nonpayment is at the voluntary request of the employee. In Novinvest and Kutty, the ALJs had little difficulty in finding a benching violation notwithstanding the assertion of a number of ultimately unsuccessful arguments, e.g., that the employees (a) did not commence employment, (b) "voluntarily" signed ex post facto requests for leave, and (c) lacked a proper medical license. In Kutty, the respondent (with no lack of chutzpah) argued unsuccessfully that the employer should not be required to pay wages since the INS should never have approved the H-1B petitions in the first instance. You thought your wages were H-1B portableH-1B Portability and the Required Wage Obligation In Infinite Solutions, the complainant sought H-1B back wages for services rendered during various visits she made to respondent's offices, maintaining that she was eligible for employment and deserving of compensation under the principle of H-1B portability.[39] When the respondent filed the LCA on behalf of the complainant, she had been working at a different H-1B employer, but was terminated by that first employer. It appeared that respondent then agreed to sponsor an H-1B change-of-employer petition as "a favor" to the claimant and offered an "expected annual salary" of $65,000. The court found that the activities performed by claimant at the respondent's offices ("sending e-mails, interviewing, and taking a computer course") were aimed at finding work for complainant but were not performed as "work" on behalf of the respondent. In addition, the court accepted the testimony of the employer that, had he intended to take advantage of the H-1B portability provisions, "[h]e would have so stated in the application." In denying wages on the basis of H-1B portability, the court concluded that the "facts simply do not support the existence of, nor a common intent to create, an employment relationship at any point prior to the approval of the H-1B application." [40] Driving with the sunroof open,LCA Posting Obligation In Santiglia, the employer posted two LCAs-one in the corporate offices and the other at the worksite in a different city. While noting that the employer was not barred from posting at corporate headquarters, the ALJ ruled that the regulations require the posting of two LCAs at the physical location where the H-1B employee would be working. The court declined to impose a civil monetary penalty, however, by finding that since one LCA was posted in the correct location, "there was no substantial violation of the posting requirement." [41] Each day your car gets older and older,Public Access Obligation Santiglia also offers guidance on the employer's duty to keep and make available on request H-1B public access folders (PAFs). The case holds that an employer:
To drive the H-1B highwayWhistle-Blowing Provisions Two recent cases address the DOL regulatory ban on retaliation against an H-1B worker for engaging in "protected conduct" by complaining of an employer's violation of the H-1B requirements.[43] In Blue Star Infotech, the ALJ refused to find an employer to have violated the prohibition against retaliation because the complainant's claims involved alleged discrimination in violation of the regulations of the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing. As the court ruled, "such complaints do not fall within the purview of [INA §] 212(n)" or the corresponding regulations. The court also held that no retaliation was proven merely because complainant expressed dissatisfaction with a new incentive policy, and the employer suggested that she "go to the Dept. of Labor with [her] question." In Kutty, however, the ALJ found employer retaliation when Dr. Kutty fired H-1B workers after their lawyer complained to Dr. Kutty and the DOL that the H-1B workers' salaries had been improperly reduced. The court found that retaliation was a contributing factor leading to the firings even though the employer's inability to afford the salaries also played a role. Thus, applying a "mixed-motive" analysis, the ALJ concluded that unlawful retaliation had occurred and ordered payment of $36,000 in fines. Ignore H-1B road rules, And for a time you may sail, But disregard corporate formalities, And the judge will "pierce your corporate veil." Personal Liability for H-1B Back Wages and Fines In Kutty, the ALJ assessed almost $1 million in back wages and civil fines against various corporate entities that had served as H-1B employers for several doctors. Because the corporate employers were defunct and virtually penniless, however, the court examined whether payment for wages owed and fines arising from numerous H-1B violations could be assessed against the companies' sole shareholder, Dr. Kutty. Applying Tennessee law, the court adopted a traditional analysis to pierce the corporate veil and hold Dr. Kutty personally responsible for paying back wages and fines. The ALJ found that: (a) the corporations were undercapitalized; (b) financial transactions were not properly recorded; (c) Dr. Kutty exercised sole control and held sole ownership of the entities; (d) assets in the companies were treated as interchangeable with personal assets; and (e) dealings were not at arms length. Although holding Dr. Kutty personally liable, the ALJ took pains, however, to note: "In the ordinary course of events, the individual signing the LCA and H-1B petitions on behalf of a corporation would not be considered the [H-1B] employer in his or her indi-vidual capacity." END OF THE H-1B ROAD? Willie Nelson, who turned 70 years young earlier this year, knows first-hand about run-ins with the federal government (having crossed swords and lost with the Internal Revenue Service in a celebrated tax case of the late 1980s). Willie surely knows about the hardscrabble life. The nation's many H-1B stakeholders would be well advised to consider Willie's timeless wisdom. There's no end to the H-1B road as long as this country continues to need bright professionals to fulfill the demand for foreign workers and fund the Boomers' Social Security retirement pensions.[44] So as Willie might sing if he knew about the H-1B visa: I can't wait to get on the [H-1B] road again. On the [H-1B] road again, Goin' places that I've never been. Seein' things that I may never see again. [45] See here for the H-1B Program Data Table. Next week: Hurtling (and Hurting) Down the H-1B Road: All Parts Compiled This article is slightly modified from the versions which appeared in 8 Bender's Immigr. Bull. 1022 (June 15, 2003) and as part of the conference materials at the 2003 annual conference of the American Immigration Lawyers Association. Copyright retained by Angelo Paparelli.
[37] See 20 CFR §655.805 (a)(2), which declares it an H-1B violation to fail "to pay wages (including benefits provided as compensation for services)."
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