May 2014

Issue link: http://ailahub.aila.org/i/304305

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Page 9 of 25

Lifestyle 9 What's Trending 9 Inter Alia 9 Get Connected 9 Member Advantage 9 Contact Us sponsor: about us: 10 CMB REGIONAL CENTERS cmb regional centers Practice Pointers w Immigration & Crimes w Immigration & Health care w going global u business immigration w behind the case by Adam J. Rosen T he H-1B visa program has become the subject of greater aention in recent years by the investigators of the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD). DOL investigations commonly start with a worker's complaint about an employer failing to pay wages. In Administrator v. Greater Missouri Medical Pro-Care Providers, Inc., ARB Case No. 12-015 (Jan. 29, 2014), the complainant lodged multiple claims against this provider of occupational and physical therapists. Although DOL was challenged at the Administrative Review Board (ARB), the agency prevailed with its power to investigate reaffirmed. INA's Aggrieved Party Provision Alena Gay Arat, an H-1B nonimmigrant employee, filed a complaint on June 22, 2006, alleging her employer, Greater Missouri, had failed to pay her wages required under its labor condition application (LCA) for time off due to a decision by the employer; had illegally made deductions from her wages; and had required her to pay an illegal penalty for ceasing employment prior to a date agreed upon by her and the employer. Aer an investigation, the Administrator found that Greater Missouri had commied numerous LCA violations against Arat and other nonimmigrant employees—including failure to pay the required wages during nonproductive periods of employment, illegally deducting fees, and illegally collecting or aempting to collect penalties for early termination of employment—along with failure to maintain documentation as required by the regulations, and liability for ongoing violations. e Administrator ordered Greater Missouri to pay back-wages of more than $382,000 to 45 H-1B employees. Greater Missouri notes that a WHD investigation of and findings against a company's treatment of multiple workers is authorized by INA §212(n)(2)(A). It also states that the congressional intent and design of the INA gives the Secretary of Labor authority and responsibility to design how the "aggrieved party" investigation is conducted. When WHD is looking for "reasonable cause," it is found based on a single H-1B worker's complaint. e ARB makes it clear that an investigation can include asking for evidence about other workers. Employer Bears Burden of Proof Greater Missouri also makes clear the employer's burden to prove its case. In review of the legal and factual determinations, Greater Missouri admied to failing to submit any evidence rebuing DOL's claims. e employer has a legal duty to comply with the law or document why it is not in violation of the law, and the failure to establish compliance allows negative inferences to be drawn where reasonable. e INA's implementing regulations are found at 20 CFR Part 655, Subparts H and I (2013). is case highlights the importance of careful compliance with LCA program rules given the considerable authority held by DOL to enforce these laws. ADAM J. ROSEN is a supervising attorney at the Murthy Law Firm in Owings Mills, MD. The author's views do not necessarily represent the views of AILA nor do they constitute legal advice or representation. Greater Missouri: 'Comply with LCA Program Rules' How to Handle DOL and USCIS Investigations + LIBRARY RECORDED Access all of DOL's ARB decisions through AILALink's Fastcase Premium portal.

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