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Chinese Immig. Daily
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Copyright© 1995-ILW.COM,AmericanImmigration LLC.
By Bruce Buchanan, Sebelist Buchanan Law
A Department of Labor Administrative Law Judge (ALJ) ruled that an employer who deducted an H-1B visa holder’s attorney’s fees from the employee’s accrued vacation time did not violate the Immigration and Nationality Act (INA). Administrator, Wage and Hour Division, Department of Labor v. Woodmen of the World Life Insurance Society.
Woodman Life hired Oscar Garcia initially under TN non-immigrant visa status. Later, Woodmen Life submitted an H-1B visa to the USCIS, which was approved. After approval, Woodmen Life and Garcia entered into an agreement whereby Garcia would repay certain expenses, including attorney’s fees, related to the H-1B petition. When Garcia’s employment ended, based upon Garcia’s resignation, he received a final paycheck which deducted $5,800 for attorney’s fees from $9,644 which was owed for accrued but unused vacation.
The DOL Administrator filed suit against Woodmen Life alleging $4,575 was unlawfully deducted from Garcia’s wages. (DOL determined $1,225 for premium processing was included in the $5,800 and was an allowable expense to be paid by Garcia.) The Administrator stated the $4,575 deducted from Garcia’s last paycheck was not allowed because it took his wages below the required wage. Woodmen Life asserted Garcia’s final paycheck did not fall below the required wage because Garcia’s vacation pay was accrued and did not affect the required wage. Under Woodmen Life’s vacation policy, if an employee resigns or is terminated, “accrued but unpaid vacation leave” will be paid in the final paycheck. Furthermore, Woodmen Life stated it treated Garcia the same as other employees who owed money to the company, such as for a tuition repayment plan.
Under the statute, employers are prohibited from seeking repayment of H-1B attorney’s fees and expenses from the required wage. However, the ALJ found in this case the $4,575 was not deducted from the required wage; rather, it was deducted from Garcia’s benefits. The ALJ found the statute allowed this type of deduction, especially where it was consistent with Woodmen Life’s policy of repayment for certain expenses from accrued but unused vacation time.