DOES A RELEASE AND SETTLEMENT PREVENT AN H-1B WORKER FROM BACK WAGES ?

When an H-1B employee separates employment from an H-1B employer, the H-1B employer often seeks a Settlement and Release.  The employer’s goal is to put the matter to rest.  It does not want the H1-B employer to file a private lawsuit seeking back wages or to file a Complaint with the Department of Labor. 

H-1B employers also often are seeking to collect on liquidated damage provisions, which allow the employer to recoup the costs associated with the separation of the employment relationship.  Costs such as reputational loss, replacement costs, and travel costs are usually recoverable under the H-1B rules

H-1B employer and employees often seek a “global settlement,” which settles all outstanding claims between the parties. 

A 2015 Department of Labor decision, Gupta v. Headstrong, 2014-LCA-00008, confirms the appropriateness and enforceability of these settlement agreements.  In Gupta, the Administrative Law Judge held that the Settlement and Release extinguish all of the h-1B employee’s claims to back wages.  Notably in Gupta, the two parties were the employer and the employee.  The DOL was not a party to that lawsuit.

It remains an open question whether an H-1B employer can legally prevent an employee from filing a Complaint with DOL following a proper Settlement and Release.  The DOL does not want to see any hindrance on an employee’s ability to file a Complaint to their agency. 

In Gupta the Department attempted to have the ALJ validate their reading of the law buy filing an amicus brief.   The ALJ did not address this issue in the Decision. The Department would not, of course, have bothered to raise the issue in the amicus brief if it were a settled issue of law. 

Nevertheless, an H-1B employee who fairly settles a back wage claim and who subsequently or concurrently files a complaint with the DOL solely on a back wage claim (and who continues to assert to the Department that the back wage claim remains unsettled following a settlement on those same claims) may be committing fraud before a government agency.  

US GOVERNMENT SHUTDOWN IMPACTS SOME IMMIGRATION SERVICES

Congress’ failure to establish a budget for Fiscal Year 2014 (start date, October 1, 2013) has an impact on some areas of immigration.  If you have any questions about how the government shutdown may impact your petitions, please contact Musillo Unkenholt.

United States Citizenship and Immigration Services:  USCIS operations continue despite the Federal Government shutdown, because fee-for-service activities performed by USCIS are not affected by a lapse in annual appropriated funding.  H-1B, L-1, I-140, and I-485 petitions and applications are expected to continue processing with little impact as a result of the federal government’s shutdown.

All USCIS offices worldwide are open for interviews and appointments as scheduled. E-Verify is an exception and is unavailable during the shutdown. For more information about how the shutdown is effecting E-Verify please visit www.dhs.gov/e-verify.

Department of Labor: Most DOL functions that impact immigration will stop working as a result of the federal shutdown.  The DOLwill neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. The DOL’s web site, including the iCERT Visa Portal System and the PERM system, have become static and are unable to process any requests or allow authorized users to access their online accounts.

Department of State: The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued. Visa issuance will be available in consulates that have adequate funding to continue operating.  Please contact our office to determine if the consulate you plan to attend will continue operating. 

Customs and Border Patrol: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual.  The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border at this time.

State Agencies:  State agencies, such as driver’s licenses and professional licenses (e.g. Registered Nurse, Physical and Occupational Therapy licenses), are not impacted by the federal shutdown.

GUILTY VERDICT IN H-1B NURSE SCHEME

Last month MU Law posted a blog about an alleged H-1B nurse visa scheme that resulted in a federal indictment and trial.  The verdict is in.  US Citizen Kizzy Kalu was found guilty of 89 criminal counts, including visa fraud, mail fraud, money laundering, and human trafficking.  

The allegations included information that Mr. Kalu misled the USCIS, alleging that the nurses would work as instructors/supervisors at Adam University.  Nurse instructor/supervisors are generally held to be specialty occupations, which makes these positions eligible for H-1B approval. 

The prosecutors proved that Adam University existed largely in name only and had no genuine need for nurse instructor supervisors.  The nurses actually worked as regular nurses at salaries below prevailing wage.  Regular nursing positions are usually ineligible for H-1B approval.

The government also proved that Mr. Kalu forced the nurses to kick back a portion of their salary and threatened to have their visas revoked if they did not comply with his scheme.  The full press release is available on the US Department of Justice’s website.   Mr. Kalu's sentencing is set for September 23, 2013.

DOJ SETTLES WITH HEALTHCARE STAFFING COMPANY FOR $100,000

The Department of Justice reached a settlement with Onward Healthcare resolving allegations of discrimination by Onward. The DOJ said that Onward posted discriminatory job advertisements on its home page and third party websites that limited its jobs to U.S. citizens. The Immigration and Nationality Act generally prohibits employers from discriminating on the basis of citizenship status unless required by law, regulation or government contract.

The settlement calls for Onward to pay $100,000 in civil penalties and to change internal policies to comply with federal law. The DOJ will also monitor Onward’s behavior for the next three years.

GENERATIONS HEALTHCARE SUED BY DOJ

The US Department of Justice filed suit against Generations Healthcare, a Skilled Nursing Facility, on Friday September 30, 2011. The lawsuit alleges that Generations Healthcare engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on job applicants.

The DOJ’s press release says that its investigation uncovered evidence that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status. These documents were not required of native-born US citizens.

MU Law clients and friends are reminded that US employers have to comply with the Form I-9 when hiring new employees. The Form I-9 identifies a variety of documents that may be used by job applications to prove valid work authorization and identity; it does not mandate that any specific document must be used.

FOURTEEN HEALTHCARE WORKERS INDICTED IN CHICAGO

Fourteen healthcare workers – mostly members of the healthcare immigrant community – have been indicted in Chicago on healthcare fraud violations. Nine of the defendants work in home healthcare. While the immigration status of the individuals is not known, it is known that most are members of the immigrant community.

If these allegations are true, the immigrant status of these individuals could be impacted, including removal from the United States. MU applauds the DOJ for its work on combating fraud in the healthcare industry.