Immigration & Crimes
Immigration & Health care
behind the case
by Adam J. Rosen
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
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