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Hurtling (and Hurting) Down the H-1B Road: Part 2 of 4

by Angelo A. Paparelli


Kutty and other recent cases make clear that the road leading up to the ALJ hearing can be bumpy or smooth depending on the employer's handling of the WHD investigation. An employer's decision whether to cooperate with the investigator or interpose procedural and substantive objections may well depend on strategic decisions of the employer's counsel and the existence and condition of the public access files and other required business records. [21] Eventually, however, if the claimant or the respondent requests a hearing, administrative litigation ensues.

Statutory Time Constraints and Limitations Period

The INA requires the WHD administrator to make a determination within 30 days after a complaint is filed, and provide 60 days for a party to request an administrative hearing. The ALJ must then render a finding no later than 60 days after the hearing. [22] The respondent in Kutty asserted that the WHD administrator's failure to meet these deadlines bars prosecution of the case before the ALJ and restricts the administrator in prosecuting the case to the facts known at the time of the initial investigation and to the remedies sought in the complaint. The ALJ rejected both assertions, holding that the seemingly mandatory nature of the time deadlines in the INA are not jurisdictional but merely directory because the statute does not specify a consequence for failure to comply with the prescribed time limits. [23]

The court also considered the assertion that some of the backwage claims brought by the administrator fell outside the one-year H-1B limitations period within which to conduct an investigation or hearing.[24] The ALJ likewise rejected this argument, holding that as long as a backwage claim was brought within the one-year limitations period, the calculation of the amount of back wages owed could include amounts for the entire period of H-1B admission. Thus, a back wage claim brought to hearing within the third year of an H-1B alien's period of authorized admission could include wage deficiencies for the entire three-year period notwithstanding the statutory one-year limitations period.

Issue Inclusion/Preclusion

The recent ALJ cases offer guidance on how a party may fall into, or avoid, a particularly unsettling pothole, namely, an 11th-hour broadening of the issues to be considered in the administrative hearing. In Administrator, Wage and Hour Division v. Novinvest, LLC (Novinvest), the ALJ reviewed the propriety of an early-resignation fee charged by an H-1B respondent to its H-1B workers even though the claim that the fee constituted an unlawful penalty was not included in the administrator's determination letter. In Santiglia v. Sun Microsystems, Inc. (Santiglia), however, the court refused to consider claimant's assertion, made for the first time in his pre-hearing statement, that respondent's policy of filing "blanket LCAs" constituted a failure to accurately specify, and therefore a misrepresentation of, the number of H-1B workers sought. Why did the two ALJs reach seemingly contrary conclusions?

In Santiglia, the court noted that under 29 CFR 18.43(c), issues not raised in pretrial papers or proceedings but nonetheless tried with the express or implied consent of the parties shall be treated as if they had been raised in the pleadings. The respondent in that case, however, had filed a pre-trial motion in limine requesting that the court exclude the blanket-LCA/misrepresentation claims. The court reasoned that consideration of last-minute claims would deprive the administrator of the statutory power to determine whether a complaint warrants investigation and provide a claimant with an other-wise undeserved right to an appeal and a hearing. The Santiglia court did consider, however, other later-asserted claims (alleging the improper use of a manager's signature on LCAs and H-1B petitions, and asserting that an alleged misrepresentation as to the employment of H-1B aliens adversely affected U.S. workers). The court considered these claims because the respondent did not object and because the latter claim was treated as merely a more precise articulation of a claim in Mr. Santiglia's complaint.

On a similar theory, the court in Novinvest addressed the propriety of a contractually-stipulated provision for reimbursement by the employee of an "investment fee" (characterized by the administrator as an early-termination penalty) that was first raised in pre-trial papers. In a pre-hearing submission the respondent argued that state-court default judgments upholding the contractual provision should stand as a binding res judicata determination in the ALJ proceeding. Respondent also cross-examined workers at the hearing about judgment amounts (including the contractual penalty) assessed against them in state civil court actions. At the conclusion of the hearing, the administrator moved to conform the agency's letter determination following its pre-hearing investigation to the evidence produced at the administrative hearing and expressly asked the court to resolve the early-termination-penalty issue.

The ALJ proceeded to rule that the penalty issue was properly raised at the hearing because the parties impliedly consented to trying the issue before the court and because the issue of the early-termination-penalty was already contained in a claim within the original complaint (viz., whether the respondent had failed to pay the required H-1B wage by taking the penalty as an unauthorized deduction).

The lesson to be learned from these cases is apparent: If a party wants a particular claim included in, or excluded from, consideration by the ALJ, then conscious and unflinching measures must be taken to accomplish that objective. A claimant must include all conceivable issues in the initial complaint, whereas a respondent must clearly and promptly object to the last-minute raising or trying of any issues not included in the claimant's complaint or the administrator's letter determination.

Burden of Proof and the Rules of Evidence

The recent ALJ decisions also make clear that customary legal principles will carry the day in the conduct of the hearing and in the courts' decisions. Thus, where the evidence supporting and opposing a particular claim is evenly balanced, the party bearing the burden of proof will not prevail.[25] Likewise, mere assertions unsupported by admissible evidence will not be sustained.[26]

Next week: Hurtling (and Hurting) Down the H-1B Road: Part 3 of 4 - Burma Shave Signs

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.

[21] See Tafapolsky article, supra, fn. 14.
[22] INA 212(n)(2)(B).
[23] Kutty at 66. In reaching these conclusions, the Kutty court relied on non-H-1B cases, and cited Administrator v. HCA Medical Center Hospital, USDOL/OALJ Reporter (HTML), ARB No. 1994-ARN-1, 7-9 (ARB June 30, 1999), a case interpreting the investigative time frames of the Immigration Nursing Relief Act of 1989, Public Law 101-238, 103 Stat. 2099 (INRA). There the court held that the time frame for INRA investigations did not bar the later discovery by the administrator of facts demonstrating the respondent's failure to pay prevailing wages. Practitioners should note that while this interpretation of INRA's time limitations may be per-missible here, INRA's use as substantive authority in H-1B cases involving non-dependent H-1B employers would arguably be inappropriate since - unlike the nurse cases in INRA - the H-1B provisions do not require evidence of affirmative efforts to recruit U.S. workers. Compare ETA Form 9035 and attestations required of general H-1B employers with those required of H-1B dependent employers and other H-1B petitioners previously found to be so-called "willful violators."
[24]See INA 212(n)(2)(A).
[25]See, e.g., Ramachandran v. Blue Star Infotech, and Administrator, Wage and Hour Division (Blue Star Infotech), Case No. 2002-LCA-8 (ALJ, June 4, 2002) (where neither party submitted evidence showing a timely or untimely LCA posting, the evidence is equal, and claimant, the prosecuting party, failed to carry the burden of proof).
[26]See Santiglia, supra (unauthenticated emails asserting that LCAs had not been properly posted at the H-1B employer's work-site may not be admitted into evidence and thus could not serve to corroborate claimant's testimony; hence, claimant did not carry burden of proving alleged failure to post LCAs). Similarly, see Novinvest, supra (respondent's failure to offer evidence that H-1B workers authorized a deduction from wages of an amount as liquidated damages under a contractual provision requiring payment by the employee upon resignation from the job before the agreed term of employment).

About The Author

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,, a firm in Irvine, California that practices exclusively immigration and nationality law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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