Wednesday, June 22, 2016

ANOTHER COURT LIMITS DOL’s AUTHORITY TO INVESTIGATE H-1 EMPLOYERS

The Greater Missouri case has been winding its way through the courts for ten years.  The case significantly limits the scope of the DOL’s authority to investigate H-1B employers, but was limited to certain Midwest states.  A decision issued last week, Volt Management, means that the opinion in Greater Missouri could be applied nationally.

Traditionally the DOL has used any allegation of H-1B or LCA violations as probable cause to investigate an H-1B employer’s entire H-1B program.  In Greater Missouri, the Eight Federal Circuit Court of Appeals held that the DOL’s investigative authority solely was limited to the allegation.  In other words, if one H-1B employee filed a complaint with the DOL, the DOL could only investigate any violations against that one H-1B employee.  The DOL cannot, under Greater Missouri, investigate the employer’s entire H-1B program.

The Greater Missouri decision, however, was limited to matters within the Eight Federal Circuit, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.  In Volt Management, BALCA held that:

Because the case at hand arose in the Ninth Circuit, I am not bound by the Eight Circuit’s decision in Greater Missouri. But having been reversed, ARB’s decision in Greater Missouri is not binding either. The ARB has had no occasion yet to revisit the issues raised in Greater Missouri in light of the change in the law—the Eighth Circuit’s holding. Until the issue is again reviewed by the ARB, it remains an open question whether a single aggrieved party complaint justifies a broad investigation into whether an employer violated the INA with respect to other H1B employees. I follow the Eighth Circuit’s reasoning.

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