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Immigration Daily

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Immigration Daily October 22, 2002
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Editor's Comments

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:

  • 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
Attorneys with practices involving H-1Bs, i.e. virtually all business immigration practitioners, will find a review of this 102-page administrative decision instructive.


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Featured Article

Pharmacists Licensing Requirements By State
Gregory Siskind and Karen Weinstock provide a state-by-state listing of Pharmacists' licensing requirements.

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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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Help Wanted: Immigration Attorneys
The Law Office of Sheela Murthy, P.C., a progressive immigration law firm (Baltimore County, MD) seeks attorneys with 3+ years of immigration law experience to sustain its growth and to service the recently expanded areas of immigration practice. Comprising of around 50 professionals working in various departments, we provide national and international clients excellent services in U.S. immigration. Candidates need leadership, people & case management skills, attention to detail, good writing & communication skills. Unique features of the job: * No Billable Hours Required * Rainmaker Not Required * Direct Contact with Business Clients * Extensive Support Staff Available * Extensive Technology Support * Incredible Growth and Learning Potential. Final interviews of candidates will be at our Offices located in Owings Mills - a 20 minute drive from downtown Baltimore, MD. Salary and benefits are commensurate with experience and abilities. We are an equal opportunity employer. Call, eMail, fax or mail: Law Firm Administrator, The Law Office of Sheela Murthy, P.C., 10451 Mill Run Circle Suite 100, Owings Mills, MD 21117. Tel: 410.356.5440. Email: Fax: 410.356.4140. Web:

Labor Certification Advertising
Do you place labor certification advertisements on behalf of your clients? Try USADWEB, LLC the premier ad agency for the immigration attorney. Our job is to make your job a little easier. Our knowledgeable staff has experience in dealing with all forms of recruitment including newspapers, journals, periodicals, Internet, college recruitment and more. You and your clients will receive the best guidance and cost efficient arrangements that any print and Internet publication can offer. Best of all, our job is not done until your client's tearsheet or affidavit has been promptly mailed to you. We offer one-stop accountability for advertisements placed in multiple publications, so leave the worrying to us. Reduction in Recruitment (RIR) Advertisements: Our goal is to help you & your clients establish a recruitment pattern that will be acceptable to the Department of Labor (DOL). All you need to do is describe your recruitment advertisement needs and we will work hard to make your needs a reality. We offer a wide range of services and bring to the table knowledge in DOL compliant advertisement. Working together with you, we can help bring certainty to your certification. Have you been asked to re-advertise based on a Ziegler NOF because of industry layoffs? With only 35 days to respond to the NOF and 10 days of recruitment, you need tearsheets as quickly as they can be delivered. We understand this situation and the many others that can arise when you are taking care of your clients. We work to make these situations simple and easy by providing prompt efficient service and aggressive follow-up with publications to help ensure that you get what you need to complete your case. Regular Labor Certification (RLC) Advertisements: Times are constantly changing, with dotbombs all around us and layoffs prevalent in many industries; many attorneys are turning to the regular labor certification process once more. Our knowledgeable staff can assist you in reviewing advertising instructions and verifying SWA (SESA) compliance for placing advertisements. We can assist you with proofing your advertisement and placing it promptly in the next most immediate publication (as instructed). We win when your job is well taken care of. Please check out our website at You can also contactus by e-mail, or toll free at 866-872-3932.

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
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Letters to the Editor

Dear 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.

Margaret Wise

Dear Editor:
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.

Name Not Supplied

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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