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I-9 E-Verify Immigration Compliance

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  1. DOL Cites Another Win for Trump’s Hire American Executive Order

    By: Bruce Buchanan, Sebelist Buchanan Law


    The U.S. Department of Labor’s Wage and Hour Division (WHD) has debarred Christopher Lee Smith, owner of Christopher Lee Smith Farms in Glasgow, Kentucky, from applying for certification to request temporary foreign workers under the H-2A agricultural worker visa program for three years. WHD also assessed the employer a $35,755 civil penalty for violating the labor provisions of the H-2A program and found Smith owed $58,820 in back wages to 14 employees.

    The DOL investigation found Smith violated the requirements of the H-2A visa program by failing to reimburse foreign workers for their transportation expenses to and from their home countries, as the law requires; failing to reimburse employees for expenses related to obtaining their visas; failing to keep required time and pay records; failing to pay employees their wages when due; and failing to pay the required minimum wage to H-2A visa workers, as required by law.

    And in a continuing trend with each resolution of an immigration-related case by a federal agency, the DOL pointed to safeguarding American jobs pursuant to Trump’s Buy American, Hire American Executive Order. Specifically, Karen Garnett, Wage and Hour Division District Director in Louisville, said “This case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect vulnerable workers from being paid less than they are legally owed.”

    The H-2A temporary agricultural program establishes a means for agricultural employers, who anticipate a shortage of domestic workers, to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

  2. 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.
  3. 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.”
  4. Employer Not Obligated to Offer Return Airfare to Discharged H-1B Employee

    By Bruce Buchanan, Sebelist Buchanan Law

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    The U.S. Department of Labor’s Administrative Review Board (ARB) found a consulting company was not obligated to offer or pay a fired H-1B employee’s airfare to India, her home country, because she took no initiative to leave the United States. See Vinayagam v. Cronous Solutions (ARB Case No. 15-045 Feb. 14, 2017).

    Cronous, a consulting company, took several months to place Vinayagam. Eventually, it placed her with another company as a contract worker, where she worked for a few months before Cronous’ contract expired. Several months later, Cronous shut down its business and notified Vinayagam of her termination and her need to immediately leave the United States. Vinayagam stated she needed to be paid all the salary owed for her time she was “benched” (available for employment but not employed) and requested airfare to India. Cronous’ representative said he would check on that matter.

    Thereafter, Cronous sent a letter to the USCIS asking for revocation of its approval of the I-129 petition. Two months later, the USCIS did so. Cronous continued to pay Vinayagam until the revocation was approved.

    Vinayagam continued to reside in the United States for another 1 ½ years seeking other employment and unsuccessfully petitioning for a change of status to B-2 - visitor. She conceded she made no effort to leave the United States.

    Vinayagam filed a complaint with the Department of Labor (DOL) on underpayment of wages and a lawsuit in federal court. The parties resolved the lawsuit with Vinayagam receiving $45,000 in back pay for the period of February 2008 to February 2009. Vinayagam asserted at the DOL that she was entitled to back pay continuing until September 28, 2010 because Cronous did not offer or provide payment of return transportation costs upon her discharge.

    As most readers know, normally an employer who discharges an H-1B employee must offer to pay the employee’s airfare to his/her home country. Other conditions which employers must meet to affect a bona fide termination of an H-1B employee are express termination of employment relationship with the H-1B employee and notification of the USCIS of the termination in order that the I-129 petition can be revoked.

    The ARB determined Cronous had ended its obligation to Vinayagam by paying her wages through February 2009 and notifying her of her termination. It did not need to pay her costs home or offer to do so because Vinayagam voluntarily chose to remain in the United States without a valid visa, sought employment with other employers, and unsuccessfully sought to change to a B-2 visa.

    In this case, the employer was successful in not offering return transportation costs based on these particular facts. Your company may not be so lucky if it fails to offer the return transportation costs. Therefore, employers should always offer these return transportation costs when discharging an H-1B employee.
  5. Attorney Pleads Guilty To Falsifying Visa Documents for H-1B Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A Virginia attorney, Sunila Dutt, pled guilty in a New Jersey federal court to criminal charges for submitting false documents to USCIS and Department of Labor and obstructing an investigation. These acts were part of a scheme to fraudulently obtain H-1B visas for foreign workers of two information technology companies, SCM Data Inc. and MMC Systems Inc.

    SCM Data and MMC Systems conspired with Dutt to falsify paperwork submitted to the federal government that stated the workers had full-time “in house” positions with the companies. In fact, SCM Data and MMC Systems would only pay the foreign IT consultants after placing them in roles working for third-party clients. Dutt also provided fabricated employment documents to the DOL after it started an audit of both companies. Furthermore, Dutt advised one of the foreign workers to lie to the USCIS about living arrangements to extend visa status.

    Dutt will be sentenced in February 2017 at which time he faces up to five years in prison and a $250,000 fine.
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