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I-9 E-Verify Immigration Compliance

ALJ Orders $48,000 in Back Pay for H-1B Worker

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By Bruce E. Buchanan @ Sebelist Buchanan Law

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A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ordered Florida-based Government Training LLC, which provides training and publishing for government agencies, to pay back wages of about $48,000 to a nonimmigrant H-1B worker, Duneet Sharma, an Indian National, whom it underpaid. See Administrator, Wage and Hour Division v. Government Training, LLC, 2015-LCA-5 (DOL OALJ 2016).

Initially, the DOL issued findings that Government Training had violated the Immigration and Nationality Act (INA) by not paying Sharma either the actual wage or the prevailing wage specified in two LCAs. Thus, the DOL concluded that Sharma was owed back wages. The employer appealed the findings, sending the case to an ALJ. In October, the DOL filed for a summary decision, saying that the facts backing its initial findings were not in dispute.

Under the INA, employers who want to hire nonimmigrants to work in specialty occupations in the U.S. under the H-1B program must first obtain certification from the DOL by filing a labor condition application, or LCA, which sets the worker’s wage levels and working conditions. After getting an LCA as well as approval from the U.S. Department of Homeland Security, the H-1B nonimmigrant is issued a visa and may begin work.

Before the ALJ, Government Training sought the case to be dismissed and raised these issues: whether the employer was not liable for back wages due to lack of work, and whether Sharma was provided with a car, a cellphone and health insurance that should have been considered part of his wages.

The ALJ found that Government Training routinely underpaid Sharma, who was employed as a computer programmer from 2010 until 2013, from the amounts it had listed in its LCAs. The ALJ said the LCAs in Sharma’s case promised to pay him $65,000 per year for the position of software engineer, and set the prevailing wage at close to $56,000. The ALJ noted that Government Training admitted that it did not pay Sharma the required wages under the LCAs, and rejected the company’s arguments that it should be excused from not paying those required wages.

The ALJ also pointed out that although the health insurance, car and phone that Sharma received could be considered as benefits that are provided as compensation, Government Training didn’t submit any documentation to show how much those items cost or that they were ever reported on Sharma’s payroll or to the IRS as required; thus, the ALJ declined to find these benefits offset some of the back pay.

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