Tuesday, November 4, 2014

FEDERAL COURT CONFIRMS GREATER MISSOURI H-1B DECISION

The Greater Missouri Medical Pro-Care Providers H-1B case has been winding its way through the court system since 2006.  The key facts are that an aggrieved H-1B holder filed a Complaint with the Department of Labor alleging a multitude of H-1B violations.  The Department of Labor’s Administrative Review Board ultimately issued a Decision in January 2014.  The ARB decision is one of the best written and comprehensive legal discussions of an H-1B employer’s salary obligations that a practitioner will ever find. 

One of the key holdings concerns the statute of limitations for an employer’s H-1B violations.  The ARB found that the DOL does not need to limit its investigation to the single complaining H-1B employee.  The DOL may expand its investigation to all H-1B employees; however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  (Page 16, in the above-linked decision). 

The ARB’s decision contained a dissent by Deputy Chief Administrate Appeals Judge E. Cooper Brown.  Judge Brown opined that the DOL’s investigative authority should be limited to the complaining H-1B employee.  If Judge Brown's opinion had held court it would have significantly changed long-standing DOL investigative practice. 

The plaintiff, Greater Missouri, sought federal review of the ARB decision hoping to convince the federal court that Judge Brown’s dissent was the proper reading of law.  Last week, the federal court denied the Greater Missouri petition, probably ending the eight and a half year saga.

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