Under the Act, an employer may hire

Issue Date: 10 December 2010
Case No.: 2011-LCA-00004
In the matter of
ADMINISTRATOR, WAGE AND HOUR DIVISION,
Prosecuting Party,
v.
ALTURA CAPITAL GROUP,
Respondent.
ORDER DISMISSING CASE
This is a proceeding pursuant to 20 C.F.R. Part § 655, et seq., promulgated to implement the
H-1B provisions of the Immigration and Nationality Act (“the Act”, hereinafter), 8 U.S.C.
§§ 1101(a)(15)(H)(i)(B) and 1182(n), and in accordance with 29 C.F.R. Part 18 (the Rules of Practice
and Procedure of the Office of Administrative Law Judges). Under the Act, an employer may hire
nonimmigrant workers from other countries to work in the United States in “specialty occupations”
for prescribed periods of time. 8 U.S.C. § 1101(a)(15)(H)(i)(B). Such workers are issued H-1B visas
by the Department of State upon approval by the Immigration and Naturalization Service (“INS”).
20 C.F.R. §655.705(b). In order for the H-1B visa to be issued, the employer must file a Labor
Condition Application (“LCA”) with the Department of Labor (“DOL”), and describe the wage rate
and working conditions for the prospective employee. 8 U.S.C. § 1182(n)(1)(D); 20 C.F.R.
§§ 655.731 and 732. Once DOL certifies the LCA, INS can then approve the nonimmigrant’s H-1B
visa petition. 8 U.S.C. § 1101(a)(15)(H)(i)(b); 20 C.F.R. §§ 655.700 (a)(3).
On October 21, 20101 the Administrator, Wage and Hour Division, DOL
(“Administrator”) issued a determination following its investigation into an LCA filed by Altura
Capital Group (“Respondent”). The Administrator determined that Respondent had failed to
properly pay an H-1B employee, and advised that back wages were due. E-mail correspondence
sent on Monday, November 1, 2010 by Respondent to a representative of DOL, refers to
telephonic communication between Respondent and a representative of DOL in which
Respondent challenged DOL’s calculations. The e-mail referred to an attached letter explaining
Respondent’s position. (see, letter dated October 28, 2010 addressed to Assistant District
Director of Wage Hour Division Louis Greer.)
In an e-mail dated November 2, 2010, Mr. Greer responded to Respondent’s
correspondence by requesting records supporting Respondent’s position. Mr. Greer advised that
1 The letter is dated October 21, 2009, but I infer from subsequent correspondence between the parties that the
determination letter was misdated. At no time did the Administrator indicate that Respondent’s construed request
for reconsideration was untimely filed.
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“if [DOL is] in error, it may be possible to reissue the determination letter.” (See, e-mail of
November 2, 2010 at 9:44 a.m.). At 4:52 p.m. on November 2, 2010, Respondent forwarded to
Mr. Greer a copy of the letter dated October 28, 2010, as well as payroll information pertaining
to the targeted employee. Mr. Greer responded at 5:04 p.m. on November 2, 2010, with an email
that reads in the entirety: “I am out today and tomorrow but I will look this over and get
back to you shortly. Thanks.”
On Sunday, November 7, 2010, Respondent sent by facsimile a letter dated October 28,
2010 to the Office of Administrative Law Judges (“OALJ”) requesting a hearing in this matter.
Respondent also sent at that time copies of all of the above-noted correspondence. The filing
was docketed by OALJ on Monday, November 8, 2010. The matter was then assigned to me.
Upon review of the procedural history, I perceived that the case was not properly before OALJ.
In the first instance, the Administrator did not forward to OALJ a copy of its determination letter
in this matter, as is required. I construed this to mean that Mr. Greer had re-opened the
Administrator’s investigation, as the correspondence suggested. In addition, Respondent’s
request for a hearing before OALJ was untimely. Pursuant to 20 C.F.R. § 655.820, a party may
request a hearing on the Administrator’s determination by filing a written request with the Chief
Administrative Law Judge OALJ no later than fifteen (15) calendar days after the date of the
determination. 20 C.F.R. § 655.820. Notwithstanding the date on the letter addressed to OALJ
(October 28, 2010), the only filing received by OALJ was the facsimile sent on November 7,
2010, constructively filed on November 8, 2010. Since Respondent’s request was filed more
than fifteen days after the date of the determination letter of October 21, 2010, it would have
been time barred.
Accordingly, by Order issued November 18, 2010, I directed the Administrator to
provide a written clarification of the date of issuance of the subject determination letter; to advise
me whether a new determination letter had been issued; and to provide me with any additional
correspondence between the Administrator and the Director that is not reference herein. I
directed Respondent to provide me with a written summary of any oral communications, and
copies of any written communications, between Respondent and the Administrator that ensued
after November 2, 2010; and provide me with copies of any evidence to establish that
Respondent’s request for a hearing was timely filed with OALJ.
On November 29, 2010, the Administrator filed with me a copy of the Administrator’s
determination dated November 24, 2010. In that document, the Administrator noted that the
previously issued determination letter of October 21, 2010 was in error. The Administrator did
not explain or otherwise clarify the procedural quagmire that my Order asked to be addressed.
Respondent declined to file anything with me.
As it is clear that the determination letter dated October 21, 2010 has been rescinded,
Respondent’s request for a hearing on that determination is moot, and the instant case is hereby
DISMISSED.
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So ORDERED.
A
Janice K. Bullard
Administrative Law Judge
Cherry Hill, New Jersey
NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for Review (“Petition”)
that is received by the Administrative Review Board (“Board”) within thirty (30) calendar days
of the date of issuance of the administrative law judge’s decision. See 20 C.F.R. § 655.845(a).
The Board’s address is: Administrative Review Board, U.S. Department of Labor, Room S-5220,
200 Constitution Avenue, NW, Washington, DC 20210. Once an appeal is filed, all inquiries and
correspondence should be directed to the Board.
At the time you file the Petition with the Board, you must serve it on all parties as well as the
administrative law judge. See 20 C.F.R. § 655.845(a).
If no Petition is timely filed, then the administrative law judge’s decision becomes the final order
of the Secretary of Labor. Even if a Petition is timely filed, the administrative law judge’s
decision becomes the final order of the Secretary of Labor unless the Board issues an order
within thirty (30) days of the date the Petition is filed notifying the parties that it has accepted the
case for review. See 29 C.F.R. § 655.840(a).

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