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I-9 E-Verify Immigration Compliance

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  1. Metropolitan Concrete Corp. owes over $100,000 Due to Violations in H-2B Visa Program

    By: Bruce Buchanan, Sebelist Buchanan Law



    Following an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), Metropolitan Concrete Corp. will pay $29,161 in civil money penalties and $73,647 in back wages to 15 employees working under the H-2B non-immigrant visa program.

    WHD investigators found Metropolitan Concrete Corp. classified the H-2B employees improperly as landscapers. The investigation determined the H-2B employees actually worked as cement masons and concrete finishers, and as such, the employer should have paid them at a higher prevailing wage rate. The company also should have advertised the position to potential U.S. workers using the correct job classification and prevailing wage rate, as required by the H-2B provisions of the Immigration and Nationality Act. Failing to do so may have resulted in fewer U.S. workers applying for the positions than would have occurred if the employer advertised accurate information.

    Investigators also found Metropolitan Concrete failed to comply with requirements to pay the employees’ inbound transportation costs and to provide workers with the tools, supplies, or equipment they need to perform their job duties. The company also took impermissible deductions from workers’ pay for housing expenses. In addition to the payment of back wages, the Division assessed $29,161 in civil penalties.

    If you want to know more information on immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. Court Rules for DOL in H-1B Backpay Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A New York federal judge, Edgardo Ramos, sided with the U.S. Department of Labor (DOL) in a lawsuit by private equity firm, Aleutian Capital Partners, arising out of an investigation into alleged violations of the H-1B visa program, the company liable for nearly $23,000 in back wages to two employees stating the DOL’s Administrative Review Board (ARB) properly ruled. See Aleutian Capital Partners v. Perez (S. D. NY 2017).

    Judge Ramos rejected arguments by Aleutian that it was exempt from meeting the requirement for financial analyst and H-1B participant Shakir Gangjee because the company exceeded two annual wage requirements of $60,000 through supplementary bonuses, which were “nondiscretionary payments” equal to 3 percent of Aleutian’s revenue each month. The judge found the ARB determined Aleutian did not provide documentation showing its commitment to making the bonus payments to Gangjee.

    Furthermore, Judge Ramos agreed with the ARB that the bonus structure was insufficient because Gangjee’s wages were contingent on the revenues of Aleutian.

    “The ARB’s interpretation is supported by the fact that Sec. 655.731(c)(4) requires employers seeking to make nondiscretionary payments to show ‘unequivocally’ that the required wage obligation was ‘met for prior pay periods’ and ‘will be met for each current or future pay period,” Judge Ramos wrote. “It is reasonable to conclude that such showing can be made only if the nondiscretionary payments are guaranteed and not contingent. Accordingly, the Court defers to the ARB’s interpretation.”
  3. Plant Nursery Violates Law by Favoring H-2A Workers

    By Bruce Buchanan, Sebelist Buchanan Law

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    Godwin’s Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

    The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

    Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

    Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.
  4. Consulting Firm Settles with DOL Concerning H-1B Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    U.S. Department of Labor Administrative Law Judge Larry S. Merck approved a settlement between consulting firm, Indus Group Inc., and the administrator of the DOL’s Wage and Hour Division, under which Indus will pay $214,785 in back wages to three H-1B computer programmer workers. Of the three employees, one is being paid $106,860 and the others - $57,760 and $50,160. The company has also agreed to pay $9,120 in penalties.

    According to the consent findings, the administrator found that in addition to owing back wages to the H-1B employees, the company did not cooperate in the investigation. However, Indus has now agreed to pay to pay the back wages as a “good faith resolution” of the dispute, according to the settlement.
  5. Employer’s Failure to Notify USCIS Costs $183,000

    By Bruce Buchanan, Sebelist Buchanan Law

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    A Department of Labor (DOL) Administrative Law Judge ruled in Matter of: Administrator, Wage, and Hour Division v. ME Global, Inc. that the employer failed to perfect the bona fide termination of its employee; therefore, ME Global owed the employee $183,000.

    ME Global hired Petar Peric on a three-year H-1B Visa in 2008. After only two months, ME Global fired Peric for unsafe conduct. Although the company notified Peric of his termination, it failed to provide notification to the USCIS of his termination.

    Under immigration laws, when an employer terminates an H-1B Visa holder, it must inform the employee, notify the USCIS, and offer to pay transportation costs for the employee to return to his home country.

    In 2010, Peric filed a complaint with DOL alleging he was owed back wages because of ME Global’s failure to notify the USCIS. Essentially, Peric argued that he was “benched” – placed in non-productive status.

    ME Global argued the complaint was beyond the 12 month statute of limitations; thus, it should be dismissed. The ALJ rejected that argument and found it was a continuing violation and was timely filed as long as it was filed within one year of when Peric left the United States. Since he filed the complaint in 2010 before leaving the U.S. in June 2011, it was not time-barred.

    Thus, the ALJ ruled ME Global owed Peric back wages from November 2008, when he was fired, until June 2011, when he left the United States.

    As you see, the employer’s failure to properly notify the USCIS of an employee’s discharge was costly.
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