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  1. H-1B Employer Allowed to Deduct Attorney Fees in This Case

    By Bruce Buchanan, Sebelist Buchanan Law

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    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.
  2. 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.
  3. 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.
  4. Soccer Camp Settles H-1B Case for $185,000

    By Bruce Buchanan, Sebelist Buchanan Law

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    An Administrative Law Judge (ALJ) with the U.S. Department of Labor (DOL) approved a settlement between the DOL and Ashley Soccer Camp for $185,000 in a complaint involving coaches hired under the H-1B program. $175,000 was for backpay and $10,000 for civil penalties.

    Ashley Soccer Camp hired 12 soccer coaches under the H-1B program and promised to pay them between $18,000 to $55,000 each year, according to DOL. However, after the coaches came to the United States, the company reneged on these promises, giving some of its employees less than 50% of what was promised.

    This led the soccer coaches to file a complaint with DOL. Thereafter, DOL found the complaint to be meritorious and set the case for a hearing. Before the hearing began, the parties reached this settlement.
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