Hurtling (and Hurting) Down the H-1B Road: Part 1 of 4
"You're driving along the [H-1B] highway lickety-split, see. You're in a hurry and you're worried about whether you're goin' to lose your job and . . . about whether there's enough oil [and] that knock in the motor. You see, modern man lives in condi-tions of strain, affect we students of psychology call it. You go along staring straight in front of you, crazy to get someplace and what do you see?"For several years now, U.S. employers, foreign professionals, and the immigration lawyers who counsel them have been driving down the H-1B autobahn. As with life itself, the H-1B road is less of a destination than a journey. At times a multi-lane highway, at others a dizzying curlicue like Mulholland Drive, and at still others a salt-carved stretch of potholes on a wintry Midwestern street, this H-1B road much traveled never lacks for critics or supporters. Along the way, one encounters aggrieved parties, industry champions, displaced workers (for-eign and domestic), Inside-the-Beltway admirers and detractors, proponents and opponents among the bar, academia and the media, and Web sites galore, some thoughtful and others merely strident. 
To many, the H-1B road ahead is deceptively familiar, in a "been there, done that" way. The multi-lane highway will suddenly turn into a two-lane road as the 195,000-person H-1B yearly quota reverts to 65,000 on October 1 of the coming fiscal year, and H-1B dependency attestations fall by the wayside. As many employers race to get in under the H-1B numerical cap using the tried and true strategies of the past, the roadway will likely be littered by new obstacles and possibly some pleasing shortcuts for the well-prepared traveler.
This article will offer a sherpa's-eye view down the vertiginous H-1B road, and report on some of the likely boulders along the way. Don't expect a Michelin Guide, however, because there's just too much terra incognita to traverse. The article will instead operate on the simple premise that the past is prologue, and will address current Department of Labor (DOL) enforcement activities and review a selection of recent Administrative Law Judge (ALJ) decisions for helpful H-1B reconnoitering.
DOL'S WAGE & HOUR DIVISION: WRECKING CREW OR 24-HOUR ROAD SERVICE?
In the recent past, the Wage and Hour Division (WHD), the DOL's enforcement arm within the Employment Standards Administration, has clearly shown itself to be an agency on a mission, pursuing enforcement actions with unprecedented gusto. On all measurement scores (number of complaints, investigations, and final determinations, and amount of back wages owed), the WHD in the latest reporting period has far outpaced its historic annual record since the WHD was first assigned H-1B enforce-ment responsibilities in 1991.
The flurry of WHD enforcement activity has resulted-quite predictably-in the imposition of the debarment penalty by the Department of Homeland Security (DHS), Bureau of Citizenship and Immi-gration Services (BCIS), a prohibition on the em-ployment-based immigrant and nonimmigrant spon-sorship of aliens for periods ranging from one to three years or longer.
DOL enforcement activity is likely to increase in the years ahead, particularly as the WHD works through the backlog of complaints precipitated by a prolonged recessionary economy, the resulting dis-gruntlement of laid-off U.S. and foreign workers, and the heightened scrutiny given this visa category by the media, academics, congressional inquisitors, and government agencies. Under the American Competitiveness and Workforce Improvement Act, the DOL is precluded from engaging in self-directed investigations except in limited circumstances but other government agencies (such as the DHS or the Department of State's consular officials) are likely to be recognized to possess appropriate standing as aggrieved parties authorized to complain about H-1B violations.
Given this heavy emphasis on enforcement, H-1B employers are well advised to conduct a volun-tary self-audit of all labor condition applications (LCAs), public access folders, and required documentation before that fateful WHD knock on the door. To the agency's credit, however, the published decisions resulting from orders of the WHD Administrator have reflected a fair degree of even-handedness toward employers, perhaps more than a cynical observer might expect from a bureaucracy dedicated to protecting the rights of workers.
ADMINISTRATIVE LAW JUDGE DECISIONS: DRIVING THE H-1B THROUGH STRAIGHT-AWAYS AND ROUNDABOUTS
Although published decisions of Administrative Law Judges (ALJs) interpreting the DOL's LCA regulations were first reported in 1993, many of the early cases involved orders approving stipulations of the parties and consent decrees. Increasingly, how-ever, ALJs have offered extensive analysis of several key provisions of H-1B law and regulation. This article will therefore survey a number of the more significant decisions and offer commentary. Rather than provide a precis of each decision, the article will instead offer a general legal overview and then address specific noteworthy issues. As we explore the pub-lished cases, employers and their counsel should consider the extent to which employers can or should rely on these ALJ decisions. Although lacking precedential value, the decisions do offer insight into what ALJs have done in the past and how they think on major issues of LCA compliance. Whatever the persuasive weight of the particular decisions, it would be prudent for conscientious employers to avoid the mistakes made in these reported decisions as they craft their own LCA compliance posture.
GETTING THE LAY OF THE LAND: NO SUBSTITUTE FOR "REAL LAWYERING"
If the ALJ decisions offer one overarching message, it is that LCA cases require mastery of (a) substantive H-1B law and regulations, and (b) the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. As a result, the cases make clear that pro se parties and lawyers unwilling to invest the time to gain the requisite expertise litigate H-1B administrative claims at their peril. Numerous decisions turn on the party bearing the burden of proof, the admission or exclusion of evidence under a typically strict reading of the rules of evidence, the pre-trial framing of the specific claims to be tried, and the skill of the participating lawyers. Another recurrent theme is that the party whose positions are endorsed by the WHD Administrator often prevails before the ALJ. This is not to suggest that the ALJs are mere rubberstamps for the DOL, but that the WHD's own trial lawyers are effective advocates, particularly where the other side is not represented by competent counsel.
One significant case that illustrates these overrid-ing themes is Administrator, Wage and Hour Division v. Mohan Kutty, M.D. et al. (Kutty). The case offers a virtual roadmap of what can go wrong when an individual respondent, apparently unschooled or self-taught in H-1B arcana, proceeds without the benefit of counsel at the administrative hearing.  In Kutty, the ALJ admitted into evidence at the hearing the respondent's lengthy deposition taken as a defendant in a civil lawsuit brought by various foreign physicians. The judge also admitted a letter from Dr. Kutty's prior immigration counsel advising him of H-1B employer-compliance obligations. Despite the obviously privileged character of the letter, Dr. Kutty had voluntarily provided the attorney's letter to the WHD investigator.
With these two damning documents in hand, the outcome of the case became quite predictable. Together they showed that the employer knew of the H-1B requirements yet recklessly failed to comply. As a result, the ALJ assessed almost $1 million in back wages and over $100,000 in civil fines against Dr. Kutty and his medical corporations, and debarred him for at least two years for multiple H-1B violations. While there can be no assurance that the result would have differed had Dr. Kutty been represented by competent counsel at the hearing, a tal-ented lawyer could have asserted the attorney-client privilege to prevent the submission to the WHD investigator of the former immigration lawyer's CYA  letter. A seasoned litigator also could have argued before the ALJ that live testimony of respondent should be presented at the hearing so that credibility could be assessed and counsel's objections could be interposed, where appropriate, for the sake of the administrative record.
Next week: Hurtling (and Hurting) Down the H-1B Road: Part 2 of 4 - Driver's Training
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.
 The author offers apologies to readers of the works of John Dos Passos (1896-1970), U.S. novelist, poet, playwright, and painter, for lifting (wholly out of context) the lines quoted in the text from a character in a Dos Passos play. For the full quotation, see Ike in Fortune Heights, act 1, sc. 2, "A Likely Lad," Three Plays, Harcourt, Brace and Company (1934).
 For a listing of large corporate users of the H-1B program access the link to the Web site of the Bureau of Citizenship and Immigration Services. For a decidedly antagonistic view from academia, see the Congressional testimony of UC Davis Professor, Norman Matloff, decrying the H-1B program as a form of "De Facto Indentured Servitude". For anti-H-1B Web sites see, e.g., the "H-1B Hall of Shame" Web site at: http://www.zazona.com/ShameH1B; see also the following Web sites with self-explanatory names: http://www.nomoreh1b.com, http://programmersguild.org/Guild/h1babuse.htm, http://www.betterimmigration.com/h1bvisa.html, and http://www.hireamericancitizens.org.
The attestation requirements will sunset on October 1, 2003, the start of fiscal year (FY) 2004, and the date the number of available H-1B petition approvals reverts to 65,000. See INA §214(g)(1)(A) and statutory note. For more on H-1B dependency, see A. J. Vasquez-Aspiri & A. Paparelli, Awakening a Slumbering Giant: The Department of Labor's Interim Final Rule on H-1B Dependency, 78 Interpreter Releases 685 (Apr. 23, 2001).
See, e.g., H. Gordon, "INS Issues New Rules for H-1B Cap Gap," Immigration Law Today (AILA Monthly Mailing) July/Aug. 1999; N-J. Merritt & D. Weigle, "Total Client Care," 1998-99 Immigration and Nationality Law Handbook, Vol. II, p. 13; see also, 8 CFR §214.2(f)(5)(vi) and (j)(1)(vi).
 For example, WHD back-wage orders in the first three quarters of Fiscal Year 2002 reached $4.2 million, compared with the cumulative sum of $5.6 million for the fiscal years 1992-2001. Similarly, the number of investigations ranged from 30 to 42 in Fiscal Years 1996-1998, but then jumped to 104 (FY 1999), 120 (FY 2000), 200 (FY 2001) and 190 (for the partial FY 2002 ending September 30, 2002). See "H-1B Program Data," provided on April 10, 2003 by Thomas Shierling, DOL Employment Standards Administration, attached as Appendix A (published with permission).
 Under §212(n)(2)(C)(ii) of the Immigration and Nationality Act of 1952 (INA), Pub. L. 82-414, 66 Stat. (codified as amended at 8 USC §§1101 et seq.), the issuance of a notice by the Secretary of Labor that an employer has engaged in certain proscribed violations of H-1B compliance obligations provided in the INA or the DOL regulations precludes the Immigration and Naturalization Service (the delegate of the Attorney General) from approving employment-based "peti-tions filed with respect to that employer" for a period of at least one year. For the DOL's role in issuing the notice of violations warranting debarment, see 20 CFR §655.855(d). The duties of the INS in effectuating debarment have been transferred to the BCIS by the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (See AILA InfoNet at Doc. No. 02120240). A recent listing of debarred employers is contained in a BCIS Headquarters memorandum by Act-ing Assistant Commissioner Thomas E. Cook (HQ 70/6.1, 6.2, March 13, 2003), entitled "Organizations Ineligible for Approval of Immigrant and Nonimmigrant Petitions Under Section 212(n)(2)(C)(ii) of the Act" (See AILA InfoNet at Doc. No. 03032127).
 Y. Robertson, "Avoiding the Abyss: H-1B Strategies when Facing Reductions in Force," 2 Immigration and Nationality Law Handbook 72 (2001-02 ed.), updated and republished in 34th Annual Immigration & Naturalization Institute, 167 (Practicing Law Institute, Oct. 18, 2001); S. Mailman & S. Yale-Loehr, "When H-1B Workers Lose Their Jobs," 6 Bender's Immigr. Bull. 851 (Sept. 1, 2001).
 See, e.g., Report to Congressional Requesters, United States General Accounting Office, U.S. General Accounting Office, January 2002, entitled "Immigration Benefit Fraud [:] Focused Approach Is Needed to Address Problems," GAO-02-66, and additional reports cited therein, accessible at http://www.gao.gov.
 American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Pub. L. 105277 (Oct. 21, 1998); 112 Stat. 2381. For background on ACWIA, see Paparelli and Robertson, "The Labor Department's Role in the H-1B Visa Program: Protector Of Workers Or Enemy Of The Future?," 76 Interpreter Releases 785 (May 24, 1999).
 See 20 CFR §655.715, definition of "Aggrieved [P]arty," which provides in relevant part: "A government agency which has a program that is impacted by the employer's alleged non-compliance with the labor condition application."
 Documents that must be included in the "public access file," sometimes also referred to as a "public disclosure file" (see the DOL's prefatory comment to its Interim Final H-1B Rule, 65 Fed. Reg. at 80112-114), are itemized at 20 CFR §655.760.
 For a detailed treatment of H-1B audits, both before and after WHD involvement, see Alan Tafapolsky, "Bingo: A Proactive Approach to DOL Audits", 5th Annual California Chapters Handbook (AILA 2002) (Tafapolsky article), and A. Paparelli and J. I. Burkemper, "Skeletons in the Closet: LCA Audits in the Age of H-1B Uncertainty," 73 Interpreter Releases 22 (June 3, 1996).
 See the USDOL/OALJ Reporter for many published ALJ decisions (including all of the cases discussed in this article). The first published case offering substantive analysis of the H-1B visa program is Eva Kolbusz-Kijne v. Technical Career Institute, Inc., 1993-LCA-4, Decision & Order (ALJ Oct. 14, 1993), Final Decision & Order (Sec'y July 18, 1994). For an analysis of this case and other early ALJ decisions, see, Ted J. Chiappari, "Survey of Labor Condition Application Enforcement Proceedings," 73 Interpreter Releases 673 (May 20, 1996), C. Shusterman and D. Neal, "Survey and Analysis of H-1B Labor Condition Application Decisions," 72 Interpreter Releases 49 (Jan. 9, 1995), and M. Pivec, "Observations on the Enforcement of H-1B Labor Condition Application Requirements," 71 Interpreter Releases 705 (May 27, 1994). The present article will focus on decisions published in the last two years, given that the later cases have addressed changes to the H-1B category brought about by recent legislation, viz., ACWIA and the American Competitiveness in the 21st Century Act, Pub. L. No. 106-313, 114 Stat. 1251 (AC21), and the DOL's promulgation of an Interim Final Rule, amending 20 CFR Parts 655 and 656 and implementing ACWIA. See 65 Fed. Reg. 89110 et seq. (Dec. 20, 2000).
 The rules are codified at 29 CFR Part 18, and are accessible on the Web at: http://www.oalj.dol.gov/librules.htm.
 While Dr. Kutty was represented by counsel in certain preliminary matters, the ALJ granted counsel's request to withdraw from representation, and Dr. Kutty proceeded pro se at the administrative hearing.
 In Kutty, although the respondent did object to the use in the ALJ proceeding of evidence gained through discovery by an attorney for H-1B aliens in private litigation, including Dr. Kutty's deposition, the objection was limited to the assertion that the deposition had been "taken under false colors" and that respondent had been given insufficient time to conduct discovery of his own. The ALJ rejected these assertions as lacking factual support but did not offer extended discussion of the legal rationale for admitting a deposition taken in civil litigation as an exhibit in the administrative case. Kutty at 65-66. While such a deposition may ultimately be treated as admissible in an H-1B administrative hearing, competent defense counsel could have attempted to postpone the taking of the civil deposition until after the conclusion of the ALJ hearing. WHD investigations must be concluded and determinations made within 30 days of the filing of a complaint, a respondent is given 60 days thereafter to request a hearing. See INA §212(n)(2)(B).
The author thanks noted practitioner, Gary Endelman, for editing this article and offering his especially insightful commentary.
Angelo A. Paparelli, certified as a Specialist in Immigration and Nationality Law by the State Bar of California, has been practicing business-sponsored immigration law for 25 years. He is a nationally recognized speaker, published author and leading expert on cutting-edge, business-related immigration issues-including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration regulations, and work visas for executives and professionals. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the ABA's Section on International Law and Practice. He also served from 1988 to 1994 as an elected member of AILA's Board of Governors. He is named in the 1990-2004 editions of Best Lawyers in America under category of Immigration Law. Mr. Paparelli received the President's Award at the June 2001 AILA Annual Conference for his contributions to the Association in liaison with the INS on the immigration consequences of mergers, acquisitions and other forms of entity restructuring. He is a graduate of the University of Michigan (B.A., 1971) and Wayne State University Law School (J.D., 1976). He is the managing partner of Paparelli & Partners LLP, http://www.entertheusa.com/, a firm in Irvine, California that practices exclusively immigration and nationality law.
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