The Department of Labor (DOL) issued an administrative decision which may shape the landscape for future Labor Condition Application (LCA) audits. In Wage and Hour Division v. Mohan Kutty, DOL found the Employer liable for back wages in the amount of over $1,000,000 and for civil money penalties in the amount of over $100,000. The specific facts for this case can be found in the 102-page decision linked to below. Some points of interest to attorneys in employment-based practice from this decision:
Attorneys with practices involving H-1Bs, i.e. virtually all business immigration practitioners, will find a review of this 102-page administrative decision instructive.
- The decision discussed the statute of limitations as applied to LCA audits - and said that the time limitations specified in the Immigration and Nationality Act are directory rather than jurisdictional, since the Act did not specify any consequences for the Secretary's failure to act within the deadlines specified
- The decision said that J1 waiver fees and costs can be reasonably interpreted within the Secretary's discretion as employer expenses
- The decision applied the standards at 20 CFR 655.810(c) to decide civil money penalties - and said that $4000 per violation for willfully failing to pay the required wage, $4000 per violation for retaliation against H-1B employees, and $800 per violation for failing to maintain public access files was "eminently reasonable"
- The decision said that the corporate entitites involved were a sham, and that piercing the corporate veil was necessary to do justice for the H-1B employees and held the employer individually responsible
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Immigration Law News
DOL Slams Employer With $1 Million Plus In Back Wages And Civil Penalties And Holds Employer Personally Responsible In Landmark LCA Administrative Decision
In the Matters of Wage and Hour Division v. Mohan Kutty, Nos. 2001-LCA-00010 through 2001-LCA-0025 (OALJ, Oct. 9, 2002), the Office of Administrative Law Judges said that the Employer was liable for back wages for over $1 million and for civil money penalties over $100,000; and said that the obligation to pay the employee doctors arose when their H-1B visas were approved without regard to the status of their credentials and that even if they could not treat patients while they were awaiting their credentials, they should have been paid anyway; and said that including J1 waiver fees and costs as employer expenses was within the Secretary's discretion; and said that nothing in the regulations suggested that an employer was free to pay less than the prevailing wage while a new business was establishing itself; and said that the Employer's failure to read the Labor Condition Applications (LCAs) was not a defense; and said that the Employer admitted that he knew he was not going to pay the employees the amounts listed in the LCAs, and said that he showed reckless disregard of the requirements of the Immigration and Nationality Act when he failed to read forms he was signing; and said that the civil money penalties assessed by the Administrator were eminently reasonable since the violations were serious and pervasive and since the potential adverse effects on the employees in terms of both financial loss and threatened deportation were extensive; and said that the corporate entities were a sham and piercing the veil was necessary to do justice for the H-1B employees; and said that the Employer should be held personally responsible for the violations.
5 Private Bills Passed In Senate
Five private bills were passed by the Senate for the relief of individual immigrants. For the texts, please click here: 1, 2, 3, 4, 5.
Matter Of Arthur Does Not Apply To Marriages Before November 10, 1986
In Ison v. INS, No. 00-70583 (9th Cir. Oct. 21, 2002), the court found that the Board of Immigration Appeals (BIA) incorrectly concluded that the Immigration Marriage Fraud Amendments of 1986 barred Petitioner from simultaneously filing both a petition for an immigrant visa and an application for adjustment of status, and said that the BIA Decision based on the Amendments did not bind the Petitioner since his marriage took place before the Amendments took effect.
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Sweeping Immigration Reform Promised In Next Congress
The Times-News of Twin Falls, Idaho reports Sen. Craig (R-ID) supported legalizing the undocumented saying "With the new Congress I am confident we will pass sweeping reform in immigration law."
8 Years Prison Time In Labor Certification Fraud Case, DOJ Will Give Victims Restitution, Says It Will Not Deport Victims
The Washington Post reports "A key figure in a scheme by an Arlington law firm to defraud thousands of immigrants was sentenced yesterday to more than eight years in prison, and federal authorities announced a plan to help repay the immigrants using $4 million of the defendant's money." The news report also says "A Justice Department official said the program would focus on restitution to victims and would not seek to deport applicants."
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Letters to the Editor
Thank you for your on-the-button remarks about Rep. Tancredo's latest idiocy in the 10/21 issue of Immigration Daily. Yes, it is the blinkered, knee-jerk, brain-challenged remarks by him and other folks like him that waste our time and resources that could be better spent in doing justice.
On your item about Rep. Mike Honda praising an undocumented immigrant for
being named Professor of the Year. As the Record Statement makes clear,
Professor Francisco Jimenez is a former undocumented immigrant. Since
college, he has been a United States citizen. It's inaccurate for you or
anyone else to call him an undocumented immigrant. Thank you for correcting
this and keep up the otherwise great work of covering and educating on
immigration issues. I find Immigration Daily a must-read.
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