h-1B aUDIT

H1B/LCA News

ALJ Finds "Benched" H-1B Employee Entitled to Unpaid Wages (5/14/2009)
ALJ found that the employee did not need a SSN to begin work, only evidence of having applied for one, thus was in employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. Benched H-1B employee is eligible for full salary in accordance with the approved LCA until the bonafide termination. The ALJ also stated that bonafide termination does not occur unless and until the USCIS receives a written request for termination. H-1B Employer does not have to pay for the duration of authorized unpaid leave of absence. Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09).

ARB finds Employer’s Conduct Willful, Assesses Civil Money Penalties
DOL Administrative Review Board (ARB) reverses Administrative Law Judge’s prior determination that the Administrator had failed to meet burden of establishing that Employer’s conduct was willful in its failure to pay employee for non-productive time. Civil money penalties exacted by Administrator are upheld. Administrator v. Pegasus Consulting Group, Inc. (ARB, 4/28/09).

ARB finds Employer Liable for Back Wages
DOL Administrative Review Board (ARB) finds Employer failed to report termination of the H-1B employee as required under H-1B program requirements. Employer is subsequently liable for back wages. The ARB asserts that employment indicated as full-time in the LCA and H-1B petition must be paid at the greater of the prevailing or actual wage rate. An employer cannot pay an H-1B worker any less, such as part-time wages for part-time work, without notifying USCIS. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al. (ARB, 12/31/08)

ALJ finds Employer Liable for Back Wages and Retaliatory Termination
DOL Administrative Law Judge (ALJ) finds the Employer retaliated against the H-1B worker by terminating employment after worker complained to DOL. ALJ determines Employer must pay back wages, benefits and interest through the date of bona fide employment termination. Huang v. Ultimo Software Solutions, Inc., 2008-LCA-00011 (12/17/08).

ALJ looks to H-1B Required Wage
Administrative Law Judge (ALJ) utilizes LCA and prevailing wage in determining back pay. ALJ declines to consider a disputed agreement establishing a higher wage, as private contract disputes are outside the scope of the DOL's authority. Galal v. Z&A Infotek Corp., 2008-LCA-00010 (5/13/08).

ALJ finds Employer Liable for Payment of H-1B Filing and Premium Processing
Administrative Law Judge (ALJ) finds Employer liable for H-1B filing and premium processing fees; ordered to reimburse H-1B worker. Benching, termination, retaliation and other issues are discussed. Morales Toia v. Gardner Family Care Corp., 2007-LCA-00006 (4/25/08).

ARB addresses Statute of Limitations for Benching Claim
DOL Administrative Review Board (ARB) finds that the 12-month period in which a benching violation complaint may be filed begins when a bona fide termination takes place, rather than within 12 months of the first benching occurrence. Gupta v. Jain Software Consulting, Inc., 05-088 (ARB 3/30/07).

ARB finds Employment Termination and Rehiring Equivalent to Benching
DOL Administrative Review Board (ARB) finds that an Employer's termination of H-1B workers without notifying USCIS and later rehiring them constitutes unlawful benching. The violation is found to be willful. USDOL, Wage & Hour Division, ESA v. Pegasus Consulting Group, Inc. (ARB 6/30/05).