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Chinese Immig. Daily
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By: Bruce Buchanan, Sebelist Buchanan Law
The Executive Office for Immigration Review (EOIR) announced the appointment of James McHenry as an administrative law judge (ALJ) in EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), effective November 14, 2016. The arrival of ALJ McHenry will provide OCAHO with a permanent ALJ to replace one ALJ, Ellen Thomas, who retired, and another ALJ, who transferred out of OCAHO.
OCAHO adjudicates cases of hiring of undocumented workers, I-9 verification violations, complaints of discrimination based on an individual’s citizenship status or national origin or overdocumentation in the employment eligibility verification process, and allegations of immigration*-related document fraud.
ALJ McHenry earned a Bachelor of Science degree in 1997 from the Georgetown University School of Foreign Service and a Juris Doctor degree in 2003 from Vanderbilt University. Prior to his appointment to OCAHO, Mr. McHenry was an ALJ for the Social Security Administration. Before that, Mr. McHenry served in a variety of capacities with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office.
By Bruce Buchanan, Sebelist Buchanan Law, PLLC
A Department of Labor Administrative Law Judge (ALJ) ordered the Southern Illinois University School of Medicine to pay an assistant professor $223,884 after finding the H-1B doctor was underpaid for her academic and clinical work.
The ALJ found that the school had failed pay Pakistani national, Dr. Sajida Ahad, the actual wage for her specific position in the general surgery division, as required by regulations. The ALJ sided with Dr. Ahad, who had argued that five of her colleagues, who earned higher wages than she did, had similar experience and qualifications, rejecting the school’s contention that the wage paid to Ahad was the actual wage - the rate paid by the employer to other individuals with similar experience and qualifications for the specific job in question.
The medical school argued there were no other surgeons who were primarily bariatric surgeons, as Dr. Ahad, and had worked in other medical specialties and were trained through a particularized fellowship. The ALJ stated: "I have considered the documentary evidence that the parties submitted as well as the testimony of the physicians that testified before me at the hearing and I find that each of the physicians listed below had similar education, experience and qualifications to Dr. Ahad.”
The school cited the Association of American Medical Colleges’ Faculty Salary Survey Report, arguing the data showed that physicians are paid different salaries based on their specialties. It also argued that the one- or two-year fellowship periods all six of the doctors completed dictated the actual wage. But the ALJ disagreed, noting that four of the five doctors received the exact same academic base salary despite completing different fellowships and having different specialties.
ALJ Davis found that the actual wage for clinical compensation during Ahab’s H-JB employment was $411,020, although she received only $253,676, and that the actual wage for the academic base was $418,791, while Ahad only received $338,789.
The ALJ also found that the school was not permitted, under the regulations, to take deductions from the actual wage owed to Ahad, saying that while it was true that Ahad had signed a compensation agreement, the regulations require more than just a signed agreement to allow for a deduction. He also determined that the school was not excused from paying part of its wage obligation on the grounds that Ahad’s productivity suffered due to her maternity leave, vacations and failure to meet the requirements of her contract.
This decision is another instance where employers, including hospitals, need to be very careful to follow the H-1B regulations on payment of wages. There seems to be several of these decisions that have been recently released.