Administrator WHD v. Cyberwiz Inc.
The Administrator found that Cyberwiz had committed violations of the H-1B program as stated in a letter dated and mailed to Cyberwiz on May 31, 2011. The determination letter gave the Respondent 15 days in which to request a hearing. The Respondent sent the OALJ a hearing request on June 22, 2011. A hearing date was then set by the OALJ.
The Administrator in the case then filed a Motion for Order to Show Cause Why Respondent's Hearing Request Should Not Be Deemed Untimely, as his determination letter clearly stated that any request for hearing must be received by the OALJ no later than June 15, 2011. The Respondent replied to the Order, saying that it did not fully understand its rights pursuant to the determination letter and that it filed its hearing request within a day of meeting with counsel. It argued that even though the letter stated that a hearing request had to be filed within 15 calendar days that the late response should be excused and the matter should proceed with the hearing.
The ALJ found the Respondent's hearing request to be untimely. Though untimeliness is not an absolute bar to administrative action, in this instance no equitable toll exists to allow the matter to proceed. Such considerations include: 1) when the responding party has been actively misled, 2) when extraordinary circumstances prevent a party from asserting its rights, and 3) when the party mistakenly raised the precise statutory claim in the wrong forum.
Administrator WHD v. ATV, Inc.
ATV was found to have committed violations of the H-1B program. The Administrator ordered the company to pay back wages to 3 individual works in addition to a civil monetary penalty. ATV responded to the determination letter and requested a hearing. The parties submitted a Joint Motion for Approval of Settlement which was granted.
Administrator WHD v. Aequor Technologies Inc.
A hearing for this case was scheduled to take place on August 15, 2011. On July 21, 2011, the Complainant withdrew his request for hearing; the Administrator also filed a motion to dismiss the Administrator as the Prosecuting Party. No objection to either motion was received, and the ALJ cancelled the hearing. It is assumed that the Complainant was one of 6 individuals which the Administrator determined was owed back wages by Aequor.
Administrator WHD v. VMH International LLC
The parties filed Consent Findings which were approved and adopted in their entirely by the ALJ to settle the case.
Arvind Gupta v. Headstrong Inc.
Complainant submitted his complaint against the Respondent in 2011 citing H-1B program violations that occurred in 2006-07. The Administrator determined that there was no reasonable cause to conduct an investigation against the Respondent, as the alleged violations had happened more than 1 year before the date of the complaint. The Administrator also supports dismissal of the current case.
In June 2011 the Complainant filed a Motion for a More Definite Statement to determine what dates the Administrator had used to find his complaint filing untimely; the Administrator said that the motion was not appropriate. The ALJ denied the Complainant's motion and further dismissed the case due to lack of jurisdiction.
Not only was the original complaint truly untimely filed (as per the dates cited in the Complainant's motion itself), but the claimant's request for hearing was impermissible because the Administrator never conducted an investigation. According to the governing regulations, a complainant may not seek a hearing or appeal if the Administrator determines that an investigation is not warranted in regards to a complaint.
Administrator WHD v. iFuturistics Inc.
The Administrator's letter, dated April 13, 2011, cited iFuturistics for violations of the H-1B program regulations. It prescribed payment of back wages and a civil monetary penalty. iFuturistics then requested a formal hearing, disputing many of the claims in the Administrator's letter.
The Solicitor for the WHD admitted there were clerical errors in the original determination letter and filed a motion to withdraw the original determination letter and to dismiss the case without prejudice.
The ALJ granted the motion, and the hearing was dismissed. The Administrator and iFuturistics have agreed to discuss the issues and the Administrator will issue a new determination letter in future.
Administrator WHD v. Fremont Investment Group Inc. dba Fremont Business Services
The Administrator and Respondent have filed consent findings which set the amount to be paid in back wages and civil penalties, and which stipulate a one-year filing debarment for Fremont. Fremont has agreed to these and has withdrawn its hearing request. The ALJ approved the consent findings, ordering them to be fulfilled.
Administrator WHD v. Vanderbilt Landscaping LLC
The parties submitted consent findings which were approved by the ALJ as being fair and legally sufficient. The approved settlement constitutes the final administrative order in the case. There will therefore be no hearing.
Administrator WHD v. Shekinah Learning Institute, Inc.
The parties submitted consent findings which were approved by the ALJ as being fair and legally sufficient. The approved settlement constitutes the final administrative order in the case.
Administrator WHD v. Infinitum Inc.
The parties filed a Joint Notice Concerning Settlement in regards to the money owed by the Respondent in back wages and civil monetary funds. The payment was delayed under the parties agreement, so the hearing was pushed back. The hearing was vacated once the Respondent complied with terms of the executed agreement. The Settlement was found to be fair and appropriate by the ALJ and was therefore approved.
Administrator WHD v. Reduction Engineering Inc.
The two parties submitted a signed Settlement Agreement and Consent Findings which the ALJ approved. The originally scheduled hearing was cancelled, and the Order to fulfill the terms in the settlement became final.
Administrator WHD v. Riz Global Technologies, Inc.
The Administrator and Respondent filed Consent Findings, and the Respondent withdrew its request for a hearing. The Consent Findings were approved, which included a payment of $6000 dollars by the Respondent to a former employee.
Administrator WHD v. Goldfield International Inc.
The parties have submitted Consent Findings to resolve the disputes over the determination which were approved and ordered by the ALJ. The payment of the prevailing wage of $44,463 to one employee of Goldfield will be deemed full satisfaction of the back wage claim against Goldfield.
Kevin Limanseto v. Ganze & Company
Limanseto worked for Ganze first as an unpaid intern in 2006 and then as a paid employee in 2007 while still on his F-1 student visa. He was presumably on OPT or CPT at the time. Ganze then filed a petition with USCIS in March 2008 to change Limanseto's status to H-1B for the period of October 1, 2008 through September 21, 2011. The petition was granted. In August, before Limanseto's H-1B validity period had started, Ganze fired Limanseto. Merely firing Limanseto does not suffice to end Ganze's federal liability, however, pursuant to the H-1B program regulations.
To effect a bona fide termination of an H-1B worker, an employer must do three things. He must notify the worker, notify USCIS so that the worker's I-129 petition may be cancelled, and he must offer to pay for the worker's return transportation to his/her home country.
In the present instance, Ganze failed to notify USCIS which means that the company remained liable for the terms it represented and attested to on the certified LCA filed for Limanseto--including the duty to pay Limanseto the required wage. When Ganze finally notified USCIS of Limanseto's termination in August 2010, more than 2 years after the fact, the Service immediately revoked Limanseto's H-1B status.
However, Ganze had already departed the US at his own expense in November 2009. Because Ganze never offered to pay for Limanseto's return home, the company is liable for the wages of the entire employment authorization period, from October 1, 2008 to September 21, 2011, at the rate specified in the LCA.
One other violation was involved: Ganze made Limanseto pay the lawyer's fee for his own H-1B application which is not permitted under H-1B regulations.
The ALJ's decision reverses the Administrator's original finding that Ganze had committed no violations and therefore did not owe Limanseto back wages. Ganze was ordered to pay full back wages for the entirety of Limanseto's employment authorization period and to reimburse him for the H-1B filing fees.