This matter arises under the Immigration and Nationality Act H-1B visa program

Issue Date: 22 December 2010
CASE NO.: 2010-LCA-00023
In the Matter of
ADMINISTRATOR, WAGE AND HOUR DIVISION,
Prosecuting Party,
v.
CAMO TECHONOLOGIES, INC.,
Respondent.
Appearances:
Andrew Karonis, Esq.
For Prosecuting Party
William A. Stock, Esq.,
For Respondents
Before:
Janice K. Bullard
Administrative Law Judge
DECISION AND ORDER
This matter arises under the Immigration and Nationality Act H-1B visa program (“the
Act” or “INA”), 8 U.S.C. § 1101 (a)(15)(H)(I)(b) and § 1182(n), and the implementing
regulations found at 20 C.F.R. Part 655, Subparts H and I, 20 C.F.R. § 655.700 et seq.
I. INTRODUCTION
The Immigration and Nationality Act’s (“INA”) H-1B visa program permits American
employers to temporarily employ non-immigrant aliens to perform specialized1 jobs in the
United States. 8 U.S.C. §1101(a)(15)(H)(i)(b). In order to protect U.S. workers and their wages
from an influx of foreign workers, an employer must file a Labor Condition Application
(“LCA”) with the Department of Labor (“DOL”) before an alien will be admitted to the United
States as an H-1B non-immigrant worker. 8 U.S.C. §1182(n)(1). If a petition to hire temporary
1 “Specialized occupation” is defined within the Act as an occupation requiring the application of highly specialized
knowledge and the attainment of a bachelor’s degree or higher (or fashion model). 8 U.S.C. §1184(i)(1).
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non-immigrant workers is granted, the Employer is required to meet certain conditions regarding
paying prevailing wages, keeping accurate records, and posting notice of the LCA and its
contents.
CONTENTIONS OF THE PARTIES
1. The Administrator
The Prosecuting Party in this matter contends that Respondent is subject to civil money
penalties for willfully failing to post notice of LCAs and for failing to retain required records.
2. Respondents
Respondents contend that any violation of posting regulations was not willful and does
not warrant the assessment of civil money penalties. Respondents further contend that they
maintained all required records and did not violate any statutory or regulatory mandate with
respect to record keeping.
I. ISSUES
The issues presented in this case for resolution are:
1. Whether Respondent willfully violated the Act by failing to file LCAs for all
work sites where non-immigrant employees were expected to perform work;
2. Whether Respondent willfully violated the Act by failing to properly maintain
records;
3. Whether civil monetary penalties should be assessed; and
4. Whether Respondent should be denied the opportunity to participate in the H-1B
visa program for at least two years.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. PROCEDURAL HISTORY
CamoTechnologies, Inc. (“Respondent”; “CTI”) filed numerous LCAs with the
Department of Labor (“DOL”) to secure H-1B visas for non-immigrant employees to work in the
field of computer programming. The H-1B visas were approved and the employees came to the
United States, where they received assignments to work for clients of the Respondents, or for
third party subcontractors. Upon a complaint charging improper payment of wages, the U.S.
Department of Labor Wage and Hour Division (“the Administrator”; “WH”) conducted an
investigation into Respondent’s H-1B visa practices, and concluded that it had failed to post
required notices about hiring H-1B non-immigrant employees in a high percentage of instances
in its non-immigrant workforce. Respondent was notified by a determination letter dated May 7,
2010 (JX1) that the Administrator had concluded that Respondent had willfully failed to post
proper notice required, and had willfully failed to maintain proper records. The Administrator
assessed a civil money penalty in the total amount of $192,625.00, and concluded that
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Respondent should be debarred from the H1B visa program for a period of two years. On May
20, 2010, Respondent requested a hearing in the matter before the Office of Administrative Law
Judges (“OALJ”).
The case was assigned to me and by Notice issued May 27, 2010, I scheduled a hearing
to commence on July 15, 2010 in Cranford, New Jersey. I rescheduled the hearing at the parties’
joint request. The hearing commenced on September 8, 2010, at which time the parties
appeared, represented by counsel. The parties submitted evidence that was admitted to the
record, with the exception of AX-4, which I excluded as not relevant. Tr. at 57. Testimony was
taken. Both parties filed closing written argument on December 17, 2010.
The record in this matter is closed. This decision2 is based upon a thorough review of the
evidence, both documentary and testamentary, as well as the arguments and pleadings of the
parties.
B. STIPULATIONS OF FACT
The parties entered into stipulations3 that I find are supported by the record, and
accordingly, I adopt as findings herein the following stipulated facts:
1. Between September 27, 2006 and September 22, 2009, Camo Technologies, Inc. (“CTI”)
employed more than 51 full time employees in the United States, with its principal place of
business located at 1480 Route 9 North, Suite 209, Woodbridge, NJ 07095.
2. At the time of the determination in this matter, CTI employed less than 51 full time
employees in the United States.
3. Between September 27, 2006 and September 22, 2009, the 92 Labor Condition
Applications (the “92 LCAs”) for H-1B Non-Immigrant Workers identified on the list attached
to the Determination Letter were filed by CTI and had been approved by the Department of
Labor (the “92 LCAs”). With respect to the fifth LCA listed in the Determination Letter, the
LCA No. is incorrectly designated as 1-07134-346171, whereas it should be designated as 1-
07134-3456171
4. The H-1B workers sponsored by CTI in connection with the 92 LCAs were assigned to
work at various locations throughout the country which were neither owned nor operated by CTI
(hereinafter “Third Party Worksite”).
5. The H-1B workers sponsored by CTI in connection with the 92 LCAs spent the majority
of their working hours at Third Party Worksites.
6. At any given time between September 27, 2006 and September 22, 2009, over 15% of
CTI’s full time employees consisted of non-immigrant workers whom CTI sponsored for H-1B
visas.
7. With the exception of LCA No. I 200-09204-758 186, CTI did not represent on the other
91 LCAs that they would be used to support H-1B petitions only for exempt non-immigrants.
2 In this Decision and Order, the evidence shall be designated as follows: Prosecuting Party’s (Administrator):“AX-
#”; Employer’s (Respondents) “RX-#”. References to the transcript of the hearing shall be made to “Tr. at #”.
3 As used herein, the term Third Party Worksite includes both those worksites that are controlled by CTI’s clients
(the “Primary Client”), as well as worksites controlled by the clients of CTI’s Primary Clients (the “Secondary
Clients”).
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8. Between September 27, 2006 and September 22, 2009, CTI did not place any of its
sponsored H-1B workers at a Third Party Worksite without first determining that such placement
would not displace any U.S. workers.
9. Between September 27, 2006 and September 22, 2009, CTI did not retain any documents
showing the manner in which it determined that its placement of its sponsored H-1B workers at a
Third Party Worksite would not displace U.S. workers.
10. The occupational classifications designated on the 92 LCAS were for computer
programmers, analysts, software engineers and related specialty occupations pertaining to the
information technology industry.
11. In 1997, Ashwani Jasti founded Bit Tech, Inc. a/k/a BIT Technologies, Inc. (“BIT
Tech”).
12. Ashwani Jasti is the current president of CTI.
13. Between June 22, 2001 and December, 2001, BIT Tech maintained its principal place of
business at 1480 Route 9 North, Suite 209, Woodbridge, NJ 07095.
14. Between June 22, 2001 and November 5, 2001, Nalini Parsram, who may also have been
referred to as Nalini Jasti, was employed by BIT Tech as its Business Development Director.
15. Between June 22, 2001 and November 5, 2001, Sridhar Margan was employed as
Manager, Accounts, and Anurag Sharma was employed as Manager, HR.
16. Between April 28, 2000 and June 22, 2001, BIT Tech authorized Anurag Sharma to
prepare the LCAs prior to filing and to post one copy of the LCA at BIT Tech’s office on BIT
Tech’s behalf.
17. On October 2, 2001, Sridhar Marghan advised John Warner by e-mail that Ms. Parsram
was on maternity leave.
18. On or about October 12, 2001, representatives of BIT Tech met with Wage Hour
Investigator John Warner in connection with WH’s investigation of alleged violations of the H-
1B regulations by BIT Tech (the “October 12, 2001 Meeting”).
19. Ms. Parsram attended some or all of the October 12, 2001 Meeting.
20. On October 15, 2001, Mr. Warner sent an e-mail to Nalini Parsram, advising in relevant
part as follows: In accordance with Title 20, Code of Federal Regulations Part 655.
734(a)(1)(A), an H-1B employer is required to post the notice of the filing of an LCA Form 9035
in two or more conspicuous places so the workers in the occupational classification AT THE
PLACES OF EMPLOYMENT can easily read or see the notice. This means, for example, that if
you have consultants working at A T & T in Kansas City, Mo you must post the notice at A T & T
In Missouri. Our Department’s position is that an H-1B employer should not place workers with
a client that balks at helping you meet this requirement. NONE of the notices you posted in one
place at your office In Woodbridge meets your obligation to post the LCA under the statute. You
should immediately make arrangements to post at all client workplaces in California, Colorado,
Illinois, Iowa, New York, etc. There are civil money penalties and other sanctions for substantial
failure to post the LCA. You are urged to document any efforts you made to retroactively comply
with this obligation.(capitalization in original)
21. On October 17, 2001, Sridhar Margan responded to Mr. Warner’s email of October 15,
2001.
22. In his email response of October 17, 2001, Mr. Margan advised John Warner that BIT
Tech would henceforth comply with the posting requirements of 20 C.F.R. § 655.734.
23. On November 5, 2001, BIT Tech advised John Warner that it had posted notice of filing
of the LCA at 60 third party worksites in 17 states.
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24. In December of 2001, BIT Tech was acquired by CAMO, Inc. (the “Acquisition”).
25. As a result of the Acquisition, BIT Tech changed its name to “Camo Technologies Inc., a
division of CAMO, Inc.”
26. On or about June 17, 2002, the Administrator issued a determination letter to BIT-Tech
finding, inter alia, that BIT Tech failed to post notice of filing of the LCAs at all 60 worksites in
17 states where it placed its H-1B employees, in violation of 20 C.F.R. § 655.734 (the “2002
Determination Letter).
27. No civil money penalty was assessed to BIT Tech related to the failure to post notice of
filing of the LCAs in the 2002 Determination Letter.
28. On or about July 2, 2002, the 2002 Determination Letter became a final order of the
Secretary of Labor.
29. In August of 2005, Wage Hour Investigator Ronald Rehl notified CTI that it was being
investigated for alleged violations of the H-1B regulations (the “2005 Investigation).
30. The violations that were investigated during the 2005 Investigation included (a) CTI’s
alleged failure to pay wages as required to one H-1B nonimmigrant, and (b) CTI’s alleged failure
to post notice of filing of the LCAs at all work locations.
31. CTI designated Ramesh Gurnani, Esq., as its representative for purposes of the 2005
Investigation.
32. On November 15, 2005, Ronald Rehl met with Mr. Gurnani in connection with the 2005
Investigation (the “November 15, 2005 Meeting”).
33. During the time periods at issue during the 2005 Investigation, CTI authorized Anurag
Sharma, Manager HR, to prepare the LCAS prior to filing, and to post notice of filing the LCAs
at CTJ’s office on behalf of CTJ.
34. On January 19, 2006, the Administrator issued a determination letter to CTI finding that
CTI failed to pay wages as required and failed to provide notice of filings of the LCAS at each
worksite where it placed its H-1B employees, in violation of 20 C.F.R. § 655.734 (the “2006
Determination Letter”).
35. For the failure to pay the required wages, no civil money penalty was assessed. CTI had
paid back wages in the amount of $20,750.03 to one H-1B non-immigrant. No civil money
penalty was assessed to CTI related to the failure to post the notice of filings of the LCAS.
36. On or about February 4, 2006, the 2006 Determination Letter became a final order of the
Secretary of Labor.
37. In March 2007, Nalini Parsram was appointed Vice President, HR and Administration, of
CTI.
38. On March 4, 2010, Wage Hour Investigator Ronald Rehl met with Nalini Parsram and
Ramesh Gurnani, Esq. to discuss alleged violations of the H-1B regulations by CTI (the “March
4, 2010 Meeting”) that occurred after the 2006 Determination Letter became a final order.
39. Ms. Parsram and Mr. Gurnani were designated by CTI to represent it in connection with
the investigation that is the subject of this hearing.
40. During the course of the entire investigation, CTI and its representatives cooperated fully
and promptly in all aspects of the investigation.
41. During the March 4, 2010 Meeting, CTI, was asked by WH to describe its policy and
procedure for posting notice of filing of LCAS at Third Party Worksites.
42. CTI advised Mr. Rehl that it would place H-1B employees at work sites owned and/or
controlled by CTI’s direct client (the “Primary Client”).
43. In addition, CTI also provided H-1B employees to its Primary Clients, who in turn
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assigned the H-1B employees to work at locations controlled by their clients (the “Secondary
Clients”).
44. Between September 27, 2006 and September 22, 2009, CTI’s policy was to post a notice
of filing of the LCA at two conspicuous locations at its offices, located at 1480 Route 9 North,
Suite 209, Woodbridge, NJ 07095.
45. Between September 27, 2006 and September 22, 2009, in those situations where CTI’s
H-1B employee was to be placed at the Primary Client’s worksite, CTI’s policy was to ask its
Primary Client for permission to post the LCA at the Primary Client’s worksite.
46. Between September 27, 2006 and September 22, 2009, in those situations where CTI’s
H-1B employee was to be placed at Secondary Client’s worksite, CTI’s policy was to ask its
Primary Client to contact the Secondary Client and to seek the Secondary Client’s permission to
post the LCA at the Secondary Client’s worksite.
47. Between September 27, 2006 and September 22, 2009, in those situations where the
Primary or Secondary Clients permitted CTI to post notice at their locations, CTI would send a
copy of the LCA with the H-1B employee and instruct him/her to post the LCA in a conspicuous
location at the Third Party Worksite on the day that the H-1B employee reported to work at that
location.
48. Between September 27, 2006 and September 22, 2009, in those situations where the
Primary or Secondary Clients refused to permit posting at their worksites, CTI would neither
post the LCA nor any notice of filing of the LCA at the Third Party Worksite, but would
nonetheless instruct its H-1B employees to report to work at those worksites.
49. Between September 27, 2006 and September 22, 2009, CTI used two forms to document
posting of the notice of filing the LCA.
50. The first form indicated that CTI was filing a petition for an H-1B Non-Immigrant
worker, setting forth, inter alia, the salary, position, and location of the petitioned employment
(the “Office Posting Form”).
51. The Office Posting Form further represented that the form was being posted for at least
ten consecutive days at CTI’s home office, located at 1480 Route 9 North, Suite
301,Woodbridge, NJ 07095. Examples of the Office Posting Form may be found in Joint Exhibit
(“JX-”) 4, page 6 of 8, and JX-5, page 6 of 8.
52. The second form indicated that CTI contacted the Primary or Secondary Client in
connection with the anticipated placement of an H-1B employee to determine whether posting
was permitted at the worksite (the “Third Party Worksite Posting Form”.
53. The Third Party Worksite Posting Form indicated (1) the date such contact was made, (2)
the name of the H-1B employee who would be assigned to work at the Third Party Worksite; (3)
the name of the city and state where the Third Party Worksite was located; (4) the name of the
individual from the Primary or Secondary Client whom CTI spoke with to determine whether
posting at the Third Party Worksite was permitted; and (5) a box indicating whether CTI was
permitted to post at the Third Party Worksite or not. Examples of the Third Party Worksite Form
may be found in JX-4, page 8 of 8, and JX-5.
54. CTI did not provide notice of posting to U.S. workers at the Third Party Worksites by
means of e-mail or electronically posting on the Primary or Secondary Client’s intranet site,
home page, electronic bulletin board, or electronic newsletter.
55. Between September 27, 2006 and September 22, 2009, CTI did not post an LCA or
notice of the filing an LCA at Third Party Worksites with respect to 67 LCAs (the “67
Incidents”). A list of the 67 Incidents has been designated as JX-2.
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56. With respect to each of the 67 Incidents, CTI produced Third Party Worksite Posting
Forms confirming that the Primary or Secondary Clients would not allow posting at their
worksite.
57. With respect to each of the 67 Incidents, CTI placed one or more H-1B employees at
each of the Third Party Worksites after being advised that posting was not permitted.
58. With respect to each of the 67 Incidents, CTI permitted its H-1B employees to continue
working at each of the Third Party Worksite even though neither the LCA nor notice of filing the
LCA had been posted.
59. With respect to each of the 67 Incidents, CTI advised WH that it did not notify the U.S.
employees at each of the Third Party Worksite that it had filed, or would be filing, an LCA for
the purpose of placing an H-1B employee at the U.S. employee’s worksite.
60. During the investigation, CTI advised WH that it believed its efforts to seek permission
to post at a Third Party Worksite, and document such effort, was in compliance with the
regulations.
61. During the March 4, 2010 meeting, Mr. Gurnani stated that, to his understanding, a
petitioning employer may place an H-1B employee at a Third Party Worksite without posting
notice of the LCA, provided that none of the petitioning employer’s U.S. workers work at that
Third Party Worksite.
62. Mr. Gurnani advised Mr. Rehl that there was legal support for Mr. Gurnani’s
understanding regarding posting requirements. Mr. Gurnani indicated that he would attempt to
locate that support and provide Mr. Rehl with a copy or citation of the same.
63. Following the March 4, 2010 Meeting, Ronald Rehl again requested by e-mail that Mr.
Gurnani provide WH with the legal authorities in support of his stated position. Exhibits JX-6
and JX-7 are true and correct copies of the e-mail exchanges between Messrs. Rehl and Gurnani
relating to this issue.
64. On April 21, 2010, WH Investigator Ronald Rehl met with Ramesh Gurnani and Nilani
Parsram to discuss the alleged H-1B violations that are the subject of this hearing (the “Final
Conference”).
65. At the Final Conference, Ronald Rehl advised Mr. Gurnani and Ms. Parsram that WH
believed that CTI’s posting policy as described violated 20 C.F.R. § 655.734, and that a violation
of this regulation would be included in the Determination Letter.
66. At the Final Conference, Ronald Rehl advised Mr. Gurnani and Ms. Parsram that a
maximum CMP of $5,000.00 for each failure to post could be assessed in the event that the
failures to post were willful, and that CTI could be debarred for two years in the event of a
willful failure to post, and one year in the event of a substantial failure to post.
C. DOCUMENTARY EVIDENCE
1. Joint Exhibits
JX-1 Administrator’s Determination Letter dated May 7, 2010
JX-2 List of LCA’s subject to determination letter
JX-3 Respondents’ request for Hearing Before Office of Administrative Law Judge (OALJ)
dated May 17, 2010
JX-4 Respondents’ LCA signed on September 4, 2008 with posting notice
JX-5 Respondents’ LCA signed on April 7, 2009 with posting notice
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JX-6 E-mail correspondence between Ronald Rehl and Ramesh Gurnani, circa. mid-March,
2010
JX-7 E-mail correspondence between Ronald Rehl and Ramesh Gurnani, circa. early March,
2010
JX-8 Administrator’s Determination of January 19, 2006
JX-9 E-mail correspondence between bit-technology and John Warner, circa. mid- October,
2001
JX-10 E–mail correspondence between bit-technology and John Warner, October 2, 2001
JX-11 Civil Money Penalty Computation Sheet
JX-12 Stipulations of Fact (detailed herein, supra.
2. Administrator’s Evidence
AX-1 Determination Letter to Bit-Technology Inc. dated June 20, 2002
AX-2 Letter to Mr. Rehl from Ramesh Gurnani, Esq. dated September 27, 2005
AX-3 Copy of Business Card showing Nalini Jasti was Manager HR for Bit-Tech
AX-5 Memo to file regarding initial conference of April 13, 2005
3. Respondents’ Evidence
RX-1 H-1 B Narrative Report of Ronald Rehl dated January 11, 2006
RX-2 H-1 B Narrative Report of John Warner dated June 13, 2002
D. FACTUAL BACKGROUND
1. Testimony of Ronald Rehl (Tr. at 22-102; 208-222)
Mr. Rehl has been the Regional Immigration Coordinator for the Northeast Region of the
U.S. Department of Labor (“DOL”) since 2009. He began working for DOL in June, 1997 as a
Wage Hour (“WH”) investigator. He had worked before that with the State of New Jersey for
more than 20 years as an investigator. Following a complaint to the DOL, Mr. Rehl conducted
an investigation into Respondent’s activities regarding the hiring of H1-B non-immigrant
workers that spanned from September 2006 until September of 2009.
Mr. Rehl’s testimony verified the factual stipulations of the parties regarding his
investigation. During the investigation, CTI was represented by Nalini Parsram and attorney
Ramesh Gurnani. Those individuals met with Mr. Rehl on October 6, 2009, and the topic of
posting was discussed. CTI provided documents that related to the posting. Mr. Rehl’s review
of the documents disclosed violations of Section 655.734 of the INA, and violations of record
keeping requirement.
Mr. Rehl explained that Section 655.734 requires employers to post notice of their intent
to hire non-immigrant employees at all work sites of the employees and to give a copy of the
LCA to each H-1B employee. If employees are expected to work at a location controlled by a
third party, the employer is required to give notice to a union representative, if available, or
directly to the third party employer for posting. Rehl explained that the purpose of the notice
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provision was to alert United States workers of the presence of non-immigrant workers. Posting
should be made 30 days before the filing of an LCA in two obvious places at the work place,
such as a Human Resources office or company bulletin board.
Rehl testified that employers can post on websites as well, but to constitute effective
notice to third party workers, the site must encompass the third party company. In the
alternative, an employer could email notice to third party United States workers. The posting
must last for ten days, regardless of its form. If it is determined that a non-immigrant employee
is expected to work at a location other than was identified in the LCA, employers are expected to
post notice at the site of the employment when the employees begins to work.
Rehl explained that the LCA contains information about the number of non-immigrants
expected to be employed, their wages, the duration of their employment, and advice to U.S.
Workers or anyone else who may have a complaint about the LCA. Rehl testified that the notice
requirements are integral to that segment of the H1-B visa program that is designed to protect
American workers. Without the notice, U.S. workers would not know that a non-immigrant
worker may be displacing them.
CTI explained to Rehl that its posting policy was to post in two locations at its office in
Woodbridge. If a non-immigrant was expected to work at one of CTI’s client locations, the
company asked the client’s permission to post or asked the intermediary subcontractor or
placement company to speak to the end user client about posting. They did not post without
permission, although the employee was dispatched to the job.
Rehl referred to CTI’s documentation regarding posting, which supported his testimony.
The documents supported his testimony, as they documented that CTI had asked for permission
to post but were denied. CTI provided him with 92 packages of LCA documentation, and of
those, 67 showed no posting had been permitted by third party clients. Nevertheless, all 67 nonimmigrant
workers were placed at the third party client work sites. Of the 92 employees
represented by CTI’s records, only three demonstrated that posting was done at a third party site.
CTI explained to Rehl that when clients gave them permission to post notice, they gave a
copy of the LCA to the worker with instructions to see that it was posted at the work site. In
other instances, CTI emailed the notice to the client. Mr. Rehl testified that the company advised
that CTI had not attempted to post notice electronically. Rehl observed that CTI’s LCAs listed a
wide range of geographic locations, such as Iowa and Mississippi. He accorded the benefit of
the doubt to Respondent and concluded that they knew where workers would be placed when the
LCAs were filed.
Rehl considers the regulations provide no exceptions to the posting requirement. He
accepted CTI’s contention that it had posted notice at its headquarters in Woodbridge, New
Jersey. However, Rehl believed that without posting, CTI should not have placed employees at a
third party client site. By doing so, they violated the posting requirement. He did not consider
this a technical violation of the Act, which is designed to protect American workers while
helping Employers fill employment needs. He observed that the H-1B visa statute provides for
stiff penalties for violators, such as the assessment of civil money penalties, and debarment from
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participation.
Rehl recalled meeting with representatives of CTI on three occasions during his
investigation. He held an initial conference at CTI’s offices on October 6, 2009 with Nalini
Parsram, who identified herself as CTI’s Vice President, and the company’s attorney, Ramesh
Gurnani. At that time, Mr. Rehl was gathering information about the company’s H-1B visa
practices in the entirety, and he was provided with the 92 packages of documents regarding
CTI’s LCAs. He next met with the CTI representatives at its offices on March4, 2010. They
discussed Mr. Rehl’s findings that some employees may have been due back wages, and Mr.
Rehl verified the accuracy of the information contained in the 92 packages that CTI had
previously provided him. He discussed his findings regarding the posting deficiencies. He
recalled that Mr. Gurnani advised him that he believed CTI was compliant with the posting
requirements, citing to a DOL legal decision that he believed supported CTI’s practices. Rehl
asked for a copy of the decision, but it wasn’t provided.
Rehl met again with the representatives for CTI on April 21, 2010. The meeting took
place at DOL’s District Office in Lawrenceville, New Jersey. DOL Assistant District Director
Richard Galtro also attended the meeting. Mr. Rehl explained that at this final conference, he
reviewed the issues involved in the investigation and discussed the period of employment,
prevailing wage, and posting requirement. He explained that it was not enough to post at CTI’s
headquarters, and that the company was in violation of the Act unless they showed that the LCAs
were posted at the actual work site for each non-immigrant worker. He explained how this
could be accomplished electronically on web-sites or through e-mail. Mr. Rehl recalled that Mr.
Gurnani believed that it was only a requirement to attempt to post at a third party employer. Mr.
Gurnani explained that many large employers were reluctant to post notice. Mr. Rehl advised
Mr. Gurnani that this position was not accurate, and further advised that he had cited CTI for
violations of the Act and had assessed civil money penalties and recommended debarment.
Mr. Rehl had become acquainted with CTI before his 2009 investigation. He had
conducted an investigation in 2005 and cited violations for failure to pay required wages and
failure to post notice of LCAs at all locations where non-immigrants worked. The investigation
disclosed that CTI had posted notice at its Woodbridge location, but not at third party locations.
He recalled holding an initial conference with Mr. Gurnani and CTI’s human resources
coordinator Ira Gordon on April 13, 2005. He discussed posting requirements, and the
representatives explained that they did not post at the actual client work locations.
Mr. Rehl testified that his point of contact for CTI during that investigation was Mr.
Gurnani. Rehl and Gurnani met at the attorney’s offices on November 15, 2005, and Mr. Rehl
reviewed the posting requirements. Mr. Rehl did not recall the specifics of their conversation,
but said that it was his practice to tell employers that they violated the Act if they do not post at
the actual work site of employees. However, Mr. Rehl stated that CTI must have agreed to
future compliance, or the investigation would have had a different outcome, including the
potential assessment of civil money penalties (CMP). Mr. Rehl remembered telling Mr. Gurnani
about the consequences of non-compliance, particularly if subsequent investigations revealed
similar posting violations. Mr. Rehl testified that it was his practice to advise Employers that he
was available to answer future questions about compliance with the Act. He spoke with Mr.
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Gurnani on the telephone on December 15, 2005, and again reviewed the need to be compliant
with posting requirements.
Mr. Rehl testified that CTI’s predecessor company was called BIT Technologies (“BIT”).
He was familiar with an investigation into that company conducted by Compliance Office John
Warner that had found violations of the Act identified in a determination letter of June 20, 2002.
When he began his investigation of CTI in 2005, he asked Mr. Gurnani to explain the company’s
relationship to BIT. Gurnani and Ashwany Jasti provided letters that explained that a company
called CAMO, Inc. and acquired BIT in 2001 and shortly thereafter, the company’s name was
changed to CAMO Technologies. Mr. Rehl understood that the name change was the only
substantive change to the operation and organization of BIT.
Mr. Rehl defined a willful violation of the Act as a knowing failure to comply, or reckless
disregard of the law. He believed that CTI’s failure to post notice at each site where a nonimmigrant
worker was located was willful. He noted that the company had been advised of the
posting requirements in 2001 and 2002 when John Warner conducted investigations into BIT,
and again in 2005 when Mr. Rehl conducted an investigation. He noted that Mr. Jasti was
President of both BIT and CTI. He noted that BIT attempted to fully comply with the Act by
retroactively posting at work sites where they had not done so, thereby acknowledging its
familiarity with the posting requirements. CTI knew that its clients had not posted required
LCAs because the documents provided by the company reflected that CTI had asked third party
clients to post the LCA’s and had been refused.
Mr. Rehl testified that CTI was straightforward about its posting practices and provided
all documents relative to the issue. The investigator acknowledged that LCA’s are approved on
the affirmations of Employers, including those relating to posting. He believed that the Act
required that the posting requirement refers to each individual employee, and not generally to a
classification of employees. The DOL’s position is that the posting authority extends to both
employees of the employer and employees of anyone else at the actual site where nonimmigrants
work, regardless of whether Employer controls the ability to post at a client location.
He believed that for electronic posting to be effective in such instances, it would have to be made
on the website of the third party client where the non-immigrant worked.
Mr. Rehl admitted that the regulations do not specifically mandate that electronic posting
be made at the actual location of non-immigrant workers, but he explained that a posting had to
be on the actual company’s website to give adequate notice of the presence of non-immigrants to
the company’s U.S. workers. Mr. Rehl did not think that a posting on CTI’s website that
identified the location of non-immigrants would give sufficient notice to the third party client’s
U.S. workers, unless they were specifically directed to look at CTI’s website. Mr. Rehl
acknowledged that a paper notice must by posted by Employers for only ten days, and he
admitted that unless a U.S. employee actually passes the area of posting, they may never have
notice of the presence of non-immigrant workers, unless someone told them about it. Similarly,
they would not have reason to look for posting on an employer’s website.
Mr. Rehl was aware that the Act defined an employer as the person who files the LCA
and the paperwork to bring an individual to the United States. He admitted that the regulations
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do identify a third party contractor of an H-1B Employer as an employer itself. Mr. Rehl
admitted he did not have jurisdiction to investigate such third party contractors, who were
located in various sites around the United States. However, he reiterated his position that the
regulations require the Employer to post in all physical locations where its H-1B visa employees
perform work.
Mr. Rehl agreed that if the third party contractor asked CTI’s non-immigrant workers to
perform the work at CTI’s headquarters, and CTI had posted notice, the posting requirement
would be met. He further acknowledged that in those circumstances, the third party contractors
would not have notice that they were competing as it were with the non-immigrants.
Mr. Rehl testified that in 2005, he found no evidence that CTI had attempted to post at
the actual site of work, but that in 2009, CTI produced evidence that they made such attempts.
Mr. Rehl recalled that Mr. Gurnani told him he believed that an attempt to post was all that was
required, and that this belief was widely held within the community of H-1B employers.
Mr. Rehl stated that DOL received a complaint against CTI in September, 2007, but did
not conduct an investigation into that complaint until two years later. The complaint alleged
violations of wage requirements, not notice posting. His investigation did not reveal back wage
violations. The investigator’s initial discussions with CTI representatives focused on the wage
issue, but Mr. Rehl remembered talking about posting issues. He stated that at one of his
meetings, he also provided to CTI fact sheets that the DOL publishes that explains the H-1B
program and its requirements.
During the course of his investigations into CTI, Mr. Rehl became aware that BIT and
CTI were linked by Ms. Parsram and Mr. Jasti. He acknowledged that DOL had concluded that
the existing evidence pertaining to the BIT investigation did not demonstrate that any officer or
official of CTI was aware of the findings in the BIT investigation. The determination letter in
that investigation was addressed to Sridhar Marghan, vice president, not Mr. Jasti. Mr. Rehl had
no knowledge about whether Mr. Marghan was associated with CTI.
Mr. Rehl testified that he was entirely dependent upon an employer’s recitation of past
posting practices, and he had no other way to determine whether a notice was posted for the ten
required days. However, the recordkeeping requirements of the regulations mandate that
employers retain documentation to show that they posted notice. The investigator stated that
DOL considers any violation that occurs more than 20% of the time to be substantial. Therefore,
he considered the posting violations to be substantial. He could not explain how CTI could have
kept records of a contractor’s posting, but he believed it was their obligation to gather and
maintain such records. He would need something from the third party clients establishing that
they had posted physically or electronically at their work site. In this case, CTI informed Mr.
Rehl that if the third party client refused to post notice, they didn’t force the issue, thereby
establishing the violation. Mr. Rehl believed that CMPs were appropriate because CTI remained
non-compliant upon the 2009 investigation, despite similar findings and the company’s promise
of compliance in 2005.
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Mr. Rehl addressed the resolution of the BIT investigation, which ended with retroactive
posting. He agreed that this probably did not resolve notice issues, considering that affected
employees might no longer work at the company where the non-immigrants worked.
On rebuttal, Mr. Rehl stated that he did not recall Ms. Parsram’s attendance at meeting on
April 13, 2005 or December 15, 2005. His contemporaneous notes of those meetings reflect that
he met with Mr. Gordon and Mr. Gurnani.
2. Testimony of John Warner (Tr. at 103-129)
Mr. Warner has been assistant district director in the northern New Jersey office of the
Wage and Hour Division since March, 2006. He had been an investigator with the agency since
September, 1977. He described the results of his investigation into BIT Technology’s H-1B visa
practices, which culminated in the determination letter issued June 19, 2002. He found three
types of violations: failure to pay the required wage for several workers; the placement of
workers at locations other than the one identified on LCAs; and failure to post the LCAs at place
of employment. Mr. Warner testified that BIT admitted to posting all LCAs only at its
headquarters in Woodbridge, New Jersey. This violated the Act because nearly all of the nonimmigrant
employees were outsourced and placed with end clients all over the country.
Mr. Warner held his initial conference on October 12, 2001 with company Vice President
Sridhar Marghan and Director of Personnel Nalini Parsram. Ashwany Jasti was the company’s
president, and Mr. Warner believed he signed the LCAs. At the conference, Mr. Warner
discussed the requirements for posting at the location where an employee actually works, and
advised the company officials that employees should not be placed in a location unless posting
had been made. Subsequently the company took action that demonstrated that it understood the
posting regulations. The company retroactively tried to post in 60 locations where employees
still worked throughout 17 states.
Mr. Warner described an email exchange between him and company officials that
outlined the findings of his investigation. Mr. Warner met with the company officials again on
November 29, 2001 and discussed his findings. He held a final conference on December 18,
2001, and the company agreed to pay back wages. He did not recall having further contact with
the company.
Mr. Warner agreed that the investigation in 2005 revealed only one wage violation and
the investigation in 2009 revealed none. He could not recall whether the company posted
retroactive notice at his prompting or on its own initiative, but he was provided documentation of
the posting. Mr. Warner testified that he cited to this action as a potential remedy to other
employers who had failed to properly post LCAs at the location where non-immigrants
physically worked.
Mr. Warner’s attention was directed to the narrative report that he prepared regarding his
2001 investigation, in which he observed that the failure to post 60 LCAs at actual work sites
was considered a nonsubstantial violation. He explained that he credited BIT’s efforts to
retroactively post as demonstrating its willingness to comply with the H-1B posting regulations.
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Of the approximately 50 investigations into H-1B practices that Mr. Warner has conducted, four
or five resulted in the assessment of CMP for failure to post.
When asked to identify which rights of U.S. workers are protected by posting, Mr.
Warner explained that his understanding of the regulations was to ensure that non-immigrants
were necessary to fill an employer’s workforce needs because of inadequate U.S. workers for a
particular type of work. The posting allows workers to contest that need by filing a complaint
that shows the existence of U.S. workers who could have filled the H-1B visa positions.
3. Testimony of Patrick Reilly (Tr. at 130-171)
Mr. Reilly has been the District Director of the Northern New Jersey office of the Wage
Hour Division of DOL for approximately two years. Before that appointment, he served as
Regional Planning Office for the northeast region for about eight years. Mr. Reilly assumed that
job after working as an investigator for about twenty-two years. He testified that he issued the
determination letter of May 7, 2010 on behalf of the Administrator. Mr. Reilly stated that two
violations were identified in the investigation that culminated in that determination: willful
failure to provide notice of filing of LCAs and failure to maintain documentation concerning
compliance with posting requirements. A CMP of $192,625.00 was imposed for the first
violation, and no CMP was assessed for the second. Mr. Reilly has responsibility for assessing
CMPs.
Mr. Reilly referred to the standard form used by WH to calculate CMPs. He explained
that the form outlines the conditions and factors that he must consider when determining whether
to assess CMPS, and provides instructions for their computation. Mr. Reilly testified about why
he believed CMPs were appropriate in this case. He noted that the willful failure to properly post
warrants debarment, and that a previous investigation had found the same violation. Mr. Reilly
believed that the circumstances demonstrated that Respondent does not have a commitment to
future compliance. Mr. Reilly observed that more than seven employees were affected by the
investigation, considering that posting was not made at 67 of the locations where non-immigrant
employees worked.
The calculation of CMPs for willful violations is based upon a computer model that
begins with a penalty of $2,500.00, in reliance upon part 810 of the H-1B visa regulations. The
maximum CMP for a willful violation of notice requirements is $5,000.00. Mr. Reilly explained
that the maximum level of CMP would be reserved for the worst sort of violator. He did not
place Respondent in that category, and he believed it was reasonable to assess half of that
amount. After determining that $2,500.00 was an appropriate CMP, Mr. Reilly then reviewed
factors that would either increase or decrease the penalty. Because a previous investigation of
Respondent had disclosed the same violation, Mr. Reilly believed that an increase of 30% of the
CMP was warranted. Although Mr. Reilly suspected the Respondent’s actions did not
demonstrate commitment to future compliance, he nevertheless did not believe that factor
merited increase in the penalty. Because Respondent had less than 51 employees, the penalty
was reduced by 10%, which was the maximum amount that this factor allowed. Mr. Reilly
believed that Respondent’s workforce was not so numerous to potentially affect a large number
of people. The penalty was also decreased by 5% because Respondent fully cooperated with the
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investigation. However, he did not believe that Respondent’s conduct reflected correction of
violations through self-audit, and therefore no decrease to the penalty was made for that factor.
He also did not decrease the penalty for Respondent’ good faith efforts to comply because he
saw no evidence that Respondent tried to comply with the posting requirements, considering the
prior investigation found the same violation.
Mr. Reilly believed that Respondent realized financial gain as a result of its failure to
post. He observed that had Respondent complied with the regulations and refused to supply H-
1B workers to contractors and third party end users who refused to post notice, then Respondent
potentially would have lost 67 placements. Mr. Reilly was not able to quantify that gain, but he
believed that it definitely existed. In addition, he believed that the failure to post was not
inadvertent. He believed that Respondent willfully failed to comply.
After considering all of the factors that could affect the computation of CMP, Mr. Reilly
used a base of $2,500.00, increased by 15% (30% increase (-) 15% decrease) multiplied by 67
violations. Mr. Reilly agreed with Mr. Rehl’s characterization of Respondent’s violation as both
willful and substantial. It is substantial because Respondent was in violation of the posting
regulations in the majority of instances. DOL procedures and guidance establish that where
more than 20% of instances represent a violation, then it is substantial. There is a $1,000.00
ceiling for CMP assessment for a substantial violation, starting at a calculation of $500.00
subject to the same increase and decrease factors used when determining a CMP for willfulness.
Respondent’s CMP for substantial violations of the Act was based on a 15% increase, times 67
violations.
Mr. Reilly explained that when he considered whether the circumstances warranted an
assessment of CMPs, he did not check off on the computation form all of the reasons because
one reason was sufficient. He did not believe that the number of reasons supporting the
assessment mattered. Mr. Reilly found that Respondent did not demonstrate a commitment to
future compliance because the prior investigation clearly educated the company about its posting
obligations. He also would have considered other indications of compliance. He found that
Respondent’s failure to comply despite instruction from the prior investigation made its
subsequent non-compliance more serious. Mr. Reilly acknowledged that the 2009 investigation
revealed that Respondent asked third parties to post and kept records of their attempts to post,
which was more than they had done in the past. However, he did not find that this represented a
good faith effort to comply, as he found that Respondent had willfully failed to comply, and U.S.
workers were not advised of the presence of H-1B non-immigrant workers.
Mr. Reilly acknowledged that one of the factors identified on the CMP computation form
was whether an employer sought legal advice, and he further acknowledged that Respondent had
been represented throughout the investigation by its attorney. He nevertheless believed that
Respondent should be penalized for its willful failure to comply even if Respondent had
followed legal advice, because the actions the company took were ultimately within its decision.
Testimony of Nalini Parsram (Tr. at 173-207)
Ms. Parsram has been Vice-president of Human Resources (HR) and Administration for
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Respondent since March, 2007. Her duties include supervising all aspects of human resources
and preparing contracts and supervising collections. She does not personally handle human
resource duties, which are performed by HR Manager Galina Legky. Ms. Legky handles
Respondent’s H-1B program processes, but Ms. Parsram is involved in setting Respondent’s H-
1B policies. From 2002 until February, 2007, Ms. Parsram was primarily involved in contracts
and collections matters for Respondent. She coordinated contract needs with end users, kept
files, coordinated billing, but was not involved in setting H-1B policy at that time. Prior to 2002,
she was involved mainly in sales, but helped with human resource issues as well. Ms. Parsram
had two breaks in service with Respondent for personal reasons, from July, 2001 until January,
2002 and from May, 2002 until the end of 2002.
Ms. Parsram testified that LCAs were prepared by an attorney in 2000, but not by Mr.
Furnani. She stated that although she was on leave when the 2001 investigation began, she
agreed to meet with the investigator because she had performed some work with human resource
issues. At that time, HR Managers Renu Mandloi and Anurag Sharma took care of immigration
matters. Ms. Parsram’s involvement in that investigation was limited to the initial conference.
She did not recall what was discussed, and she had no involvement with posting at clients.
Ms. Parsram was involved in the 2005 investigation that involved a complaint about
wages, which the company paid to one employee. She explained that certain contractual
obligations with clients, including non-compete clauses, made it difficult for Respondent to talk
to end using clients, and she remembered explaining that difficulty to Mr. Rehl. She was able to
discuss the posting requirements with CTI’s direct contractors, but not with the third party users
of the employees. Ms. Parsram testified that Respondent provided non-immigrant employees
with copies of the LCAs in 2005, but had not kept documentation of that event. She remembered
discussing this requirement with Mr. Rehl, and subsequently, the company kept documentation
of providing LCAs to employees. She believed that she was present at both the April 13, 2005
and November 15, 2005 meetings.
Ms. Parsram recalled her discussion with Mr. Rehl about Respondent’s posting dilemma.
She said that Mr. Rehl acknowledged that Respondent’s contractual obligations imposed
difficulty on its ability to contact the third party end user. She explained that Respondent did
direct its immediate contractors to post notice. She recalled Mr. Rehl advising that Respondent
keep records of its attempt to post the LCAs at the end client location. Accordingly, Respondent
created what they called an LCA statement, which they sent by email to each employee, along
with a copy of the LCA and a form that showed that the employee had received it. The statement
is placed in each employee’s public access file. Respondent also created a document that
recorded the results of its attempts to post LCAs. Respondent no longer uses that document,
since learning in 2009 that it does not satisfy the posting requirements.
Ms. Parsram recalled that during the 2005 investigation, Mr. Rehl asked for information
about BIT Technologies. She stated that BIT was acquired by CAMO Technologies, which is a
publically owned company. BIT business practices changed after the acquisition, as
CamoTechnologies is publicly traded, and Mr. Ashwany Jasti was the sole shareholder of BIT.
However, the CEO and President of both companies were the same. There was a different HR
staff in 2001 than in 2005. She started to work for BIT in May 2000 and until 2002 worked in
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sales. When she returned from maternity leave, she worked in sales until the acquisition, and
then she worked in contracts and collections. She had a role in HR, primarily administratively,
to assure that paperwork was in order. She also worked with payroll, assuring that timesheets
were submitted.
Ms. Parsram was present at every meeting involved in the 2009 investigation. She
recalled that most of the discussion was about wages, although posting of LCAs was also
discussed. She provided Mr. Rehl with public access files for all non-immigrant employees, and
she had no concerns about what he would find, as she believed that Respondent was compliant.
After the determination letter, Respondent changed its practices by making it mandatory to post
at the end client. More information was added to the posting notice, and Ms. Parsram personally
makes Respondent’s clients aware that end users must post notice. Ms. Parsram testified that
CTI has lost business because some end clients do not believe that the posting is necessary. She
believes that the posting requirement has resulted in the loss of business. She has been told that
posting shouldn’t be necessary, since the H-1B employee is only a contractor and not an
employee. Most of her feedback is from CTI’s direct client. She communicates mostly through
email, because that creates a record. Ms. Parsram has discussed Respondent’s posting situation
with other consulting companies, who have informed her that they have not been required to post
at the end-user client location despite having the same business models as Respondent.
Ms. Parsram did not recall that whether Mr. Rehl told her that the firm would be
compliant by merely documenting attempts to post at third party end users in 2005. She did not
recall Mr. Rehl telling her that an attempt would not be good enough. She testified that Mr. Rehl
expressed an understanding of Respondent’s contractual obligations that made direct contact
with third party users difficult. She recalled that Mr. Rehl instructed Respondent to document
posting. She disagreed with Mr. Rehl’s recollection that the December 15, 2005 was held at his
office, but rather recalled that the meeting was held at Mr. Gurnani’s office or at Respondent’s
office. She did not recall whether she had made and kept notes at all meetings, although she
believed she made notes at some meetings.
Ms. Parsram explained that CTI is one of the divisions of parent company CAMO, Inc.
E. ANALYSIS
Pursuant to 20 C.F.R. § 655.840(b) an Administrative Law Judge has the authority to
“affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator.”
20 C.F.R. §655.840(b) provides for a review of assessed civil penalties by the ALJ, whose
regulatory authority is broadly drawn. An ALJ’s scope of authority to change the
Administrator’s assessment is “untrammeled” under the regulations and specifically includes a
determination of the appropriateness of the assessed civil money penalty. Administrator v.
Chrislin, Inc., 2002 WL 31751948 (DOLAdm.Rev.Bd.). Thus an ALJ has the discretion to
determine whether the civil money penalties assessed by the Administrator are appropriate in
light of the controlling statutory and regulatory factors.
The factual underpinnings of this adjudication are largely undisputed, as reflected by the
parties’ stipulations of fact. In summary, in 2009, Administrator conducted an investigation into
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Respondent’s H-1B visa practices, in response to a complaint about the proper payment of
wages. Although that complaint was not borne out by the investigation, the Administrator found
violations of the regulatory requirements to post LCAs at the worksites of non-immigrant
workers. The Administrator had found similar violations in an investigation conducted in 2005.
Moreover, an investigation of Respondent’s predecessor company in 2001 revealed similar
violations.
In its determination issued on May 7, 2010, the Administrator cited Respondent for
violations of posting requirements, which it characterized as willful and substantial. The
Administrator assessed CMP in the amount of $192,625.00 for the alleged willful and substantial
nature of the violations. The Administrator also found that Respondent violated record-keeping
requirements.
A.) Failure to provide notice of filing of LCAs
The notice requirement of an LCA mandates that employers post notice of their intent to
hire non-immigrant workers. Under 20 C.F.R. § 655.805(a)(5), an H-1B employer must provide
notice of the filing of an LCA. See, also, 20 C.F.R. § 655.734. The employer must provide such
notice in one of the two following manners. “A hard copy notice of the filing of the LCA may
be posted in at least two conspicuous locations at each place of employment where any H-1B
nonimmigrant will be employed (whether such place of employment is owned or operated by the
employer or by some other person or entity)”. 20 C.F.R. § 655.734(a)(1)(ii)(A). Alternatively,
“electronic notice of the filing of the LCA may be posted by providing electronic notification to
employees in the occupational classification (including both employees of the H-1B employer
and employees of another person or entity which owns or operates the place of employment) for
which H-1B non- immigrants are sought, at each place of employment where any H-1B
nonimmigrant will be employed.” 20 C.F.R. § 655.734(a)(1)(ii)(B).
In addition, “the employer shall, no later than the date the H-1B nonimmigrant reports to
work at the place of employment, provide the H-1B non-immigrant with a copy of the LCA
certified by ETA and signed by the employer (or by the employer’s authorized agent or
representative).” 20 C.F.R. § 655.734(a)(3). The notice shall indicate “that H-1B nonimmigrants
are sought; the number of such non-immigrants the employer is seeking; the
occupational classification; the wages offered; the period of employment; the location(s) at
which the H-1B non-immigrants will be employed; and that the LCA is available for public
inspection at the H-1B employer’s principal place of business in the U.S. or at the worksite.” 20
C.F.R. § 655.734(a)(1)(ii). Notification must be given on or within 30 days before the date the
LCA is filed and should remain posted or available for a total of 10 days. 20 C.F.R.
§ 655.734(a)(1)(ii)(A)(3) and (a)(1)(ii)(B).
The evidence is uncontroverted that Respondent failed to file notice of LCAs at the actual
location where non-immigrants worked. Respondent does not deny awareness of the posting
requirements, and the record establishes that Respondent made attempts to facilitate posting at
the work site of the H-1B workers.
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I accord little weight to Respondent’s argument that the regulatory definition of
“employer” refers to the entity that applied for the H-1 B visa. This argument is at odds with the
regulatory definition of “place of employment”, which is defined as “the worksite or physical
location where the work is performed.” 29 C.F.R. § 507.715. This clearly establishes that the
Secretary intended to require an employer to post the required notice at the location or locations
where employees actually perform their everyday work. In addition, regulations pertaining to
the posting requirement provide that “[t]he notice shall be of sufficient size and visibility, and
shall be posted in two or more conspicuous places so that the employer’s workers at the place(s)
of employment can easily see and read the posted notice(s).” 29 C.F.R. § 507.730(h)(1)(ii)(A). I
find that the use of the plural in “place(s) of employment” reveals that the phrase refers to more
than the Employer’s primary headquarters. I find that the requirement to post at the physical
location of an employee is also consistent with the purposes of the H-1B statutory scheme, which
in part strives to protect the wages and working conditions of American workers from being
adversely affected by the employment of H-1B workers. See, 57 Fed. Reg. 1,316 (1992).
Accordingly, I find that Respondents did not provide notice of the intent to hire nonimmigrant
workers in violation of 20 C.F.R. §734(a)(1).
1. Willfulness of Non-posting
Willful failure is defined by 20 C.F.R. § 655.805(c) as “a knowing failure or a reckless
disregard with respect to whether the conduct was contrary to [the Act].” 29 CFR § 655.805(b)
(1995) and 29 CFR § 655.805(c) (2002); McLaughlin v. Richland Shoe Co., 486 U.S. 128
(1988); see also Trans World Airlines v. Thurston, 469 U.S. 111 (1985).
I find that CTI had actual knowledge of its obligation to post at all locations where
employees worked. However, I find that the preponderance of the evidence fails to establish that
it knowingly and intentionally violated the posting requirement. There is no dispute that
Respondent posted notice of LCAs at its main offices. The record is also undisputed that after
the 2005 investigation, Respondent developed a system whereby it documented its attempts to
post LCAs with third party end users of non-immigrants who were contracted out by
Respondent’s direct customers. The record also discloses that posting took place at several sites
out of Respondent’s control. I discredit the Administrators’ argument that Respondent made
only “cosmetic” changes in its posting practices. It is clear that in 2005, no efforts to post offsite
were made, but by 2009, the public access file for each non-immigrant worker contained
documentation referring to posting at sites other than Respondent’s main offices. In addition, the
2009 investigation revealed that CTI had implemented the practice of having employees
acknowledge receipt of a copy of the LCA.
In support of its argument of willfulness, the Administrator argues that Investigator Rehl
advised Respondent during the 2005 investigation that if a third party refused to post the LCA,
then the employee should not be placed. He testified that it is his practice to advise investigation
subjects of the posting requirements. Mr. Rehl’s recollection that Ms. Parsram was not in
attendance at his initial meeting with company officials in April, 2005 is supported by his
contemporaneously prepared memo to file, which does not include her as one of the attendees.
AX 5. His narrative report of January 11, 2006 reflects that he met with only Mr. Gurnani on
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December 15, 2005 for a final conference. RX 1. Mr. Rehl testified that he met only with Mr.
Gurnani at his offices in November, 2005. Ms. Parsram recalled meeting with Mr. Rehl during
the 2005 investigation and explaining the company’s posting process. I accord more weight to
Mr. Rehl’s testimony on this issue, as it is supported by the record. I note that Ms. Parsram’s
recollection about the timeframe of participation in the investigation process may have been
confused. However, I am not entirely convinced that Ms. Parsram was not in attendance at the
November, 2005 meeting at Gurnani’s office. She testified that she attended at least one meeting
with both Gurnani and Rehl that was held at either his office or CTI’s offices. Ms. Parsram was
uncertain whether she had kept notes of the meeting, and did not know that she retained such
notes, if she had made them. In contrast, Mr. Rehl has offered documentary evidence in support
of the attendees at every meeting other than the November, 2005 meeting, thereby undermining
his recollection about that occasion somewhat suspect.
Considering the number of meetings that both Mr. Rehl and Ms. Parsram attended over a
long span of time to discuss CTI’s H-1B-visa practices, I decline to find that this discrepancy in
the testimony supports finding willfulness in CTI’s conduct. CTI fully cooperated in the 2009
investigation and provided documents that the Administrator admitted did not appear to be
fabricated in any way (Tr. 59). Ms. Parsram had no trepidation about the company’s
documentation, as she believed CTI was compliant. Tr. 186. It defies reason to conclude that
CTI would keep and produce such candid records of non-compliance if it thought that its
practices were in violation of the regulatory requirements. Considering that the Administrator is
totally reliant upon the representations of Employers regarding posting, CTI could easily have
kept files that noted that posting was accomplished. Indeed, the Administrator admitted that it
has no authority to investigate whether a third party complied with posting, but was limited to
determining from an employer’s documentation whether posting had been accomplished. Tr. at
71.
I find support for the Administrator’s finding that CTI knew after the 2005 investigation
what the regulations required. I fully credit Mr. Rehl’s testimony that he would not have
sanctioned the policy that CTI implemented had CTI asked him for approval. However, I also
credit Ms. Parsram’s testimony that she believed that the company’s subsequent practices met
the regulatory requirements for third party posting. Accordingly, I find that the eventual practice
that CTI used for posting at third party end users of H-1B employees did not amount to a willful
decision to violate the law. The record establishes that following the 2005 investigation, CTI
changed its posting and recordkeeping practices to reflect that it attempted to comply with the
regulations.
The Administrator argues that Respondent’s actions represent willfulness because the
2009 investigation into its actions was the third of its kind. This argument is inconsistent with
the evidence. I credit Mr. Rehl’s testimony that he did not consider the 2001 investigation into
BIT Tech to be a prior investigation (Tr. at 51), as it is supported by documentary evidence. Mr.
Rehl’s narrative report dated January 11, 2006 states that “it can not [sic] be demonstrated that
any officer or official of Camo [T]echnolgies had any knowledge of the findings in the prior
investigation.” RX 1, page 3. In addition, the fact that the posting violations uncovered in 2005
were considered non-substantial supports my finding that the Administrator considered the 2005
investigation of CTI to be the first. I therefore reject the Administrator’s arguments that the BIT
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Tech investigation should be imputed as the first of three investigations into Respondent’s
posting practices . I place great weight on the contemporaneous conclusions of Mr. Rehl
regarding the 2005 and 2009 investigations, which I find represent the first and second,
respectively, that the Administrator conducted into Respondent’s H-1B visa practices.
Parenthetically, I find that the evidence does not establish a clear connection between the
individuals who represented BIT Tech and those who represented CTI in the various
investigations. Although Ms. Parsram was involved to some degree in all three, the
Administrator’s evidence establishes that she was minimally involved in the 2001 and 2005
investigations. Although Mr. Jasti was President of both entities, the record is devoid of
evidence establishing his involvement in, or knowledge about the outcome of, the investigations
and CTI’s actions thereafter.
Even if I were to consider the 2009 investigation the third that uncovered posting
violations, I would continue to find that the violations disclosed by the 2009 investigation are not
willful. In that investigation, Respondent produced documentation of attempts to post, and also
produced other records documenting that non-immigrants had been provided copies of LCAs.
This documentation represents a marked improvement from Respondent’s actions in 2005, where
no posting was even attempted, and no documentation was maintained. Despite the total lack of
compliance, no civil money penalties were imposed in 2005. I find that Respondent
implemented measures to document posting and other regulatory requirements in voluntary,
though inadequate, compliance with the law. I decline to find that the 2009 violations
demonstrate willfulness on Respondent’s part.
I find that Respondent’s actions represent a good faith effort to comply with the
regulatory posting requirements. Willfulness is not warranted where good faith exists. Although
Respondent’s subjective belief about compliance does not relieve it of its obligation to meet the
regulatory mandates of the H-1B visa program, in these circumstances, I find that Respondent’s
posting practice, though deficient, does not constitute a willful violation of the Act.
2. Reckless disregard for the law
I find that the record does not demonstrate that Respondent displayed reckless disregard
of the regulatory posting practices. As I have observed, Mr. Rehl’s 2009 investigation disclosed
attempts to post at third-party work sites, which was an improvement over what he found in
2005. Moreover, the findings of the 2005 investigation found posting violations that were
considered non-substantial. The record does not establish how many non-immigrant employees
were placed at locations without proper posting. Information about the number of nonimmigrants
employed by CTI during the period covered by the CTI investigation cannot be
found in the parties’ stipulations, Mr. Rehl’s testimony and narrative report (RX 1), Ms.
Parsram’s testimony, or the Administrator’s determination (JX-8). In fact, the evidence of record
regarding the 2005 posting violations is so scant that it fully supports the Administrator’s
determination that the posting violations were non-substantial.
Mr. Rehl testified that at the end of that investigation, he advised CTI that it was being
given “a break because it’s going to be considered an initial investigation but if we have to come
out the second time and you’re still not in compliance that’s when you face the severe penalties. I
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say, that’s when you’re really going to have a problem”. Tr. 51. However, the investigator’s
testimony does not demonstrate exactly what violations he referred to during that discussion.
The 2005 investigation revealed both wage and posting violations. When Mr. Rehl’s testimony
is compared to his narrative report from the investigation, one may refer that the focus of his
final conference discussion was Respondent’s wage violation. See, RX1. Accordingly, I find
that it may be inferred from the evidence that Respondent had little reason to believe that any
deficiency in its posting practices would be treated as significant. CTI can be credited for not
understanding the gravity of potential future violations of posting requirements.
I find that the evidence fails to establish that Respondent acted with reckless disregard for
the regulations, or the consequences of non-compliance.
3. Civil Money Penalty Computations
The Administrator “may” assess civil monetary penalties up to $1,000 for non-willful
violations and up to $5000 for willful violations of the INA. 8 U.S.C. § 1182(n)(2)(C)(i)-(ii); 20
C.F.R. § 655.810(b)(1)-(2)(i)-(iii). “Seven factors may be considered in determining the amount
of a monetary penalty: previous history of violations by the employer; the number of workers
affected; the gravity of the violations; the employer’s good faith efforts to comply; the
employer’s explanation; the employer’s commitment to future compliance; the employer’s
financial gain due to the violations; or potential financial loss, injury or adverse effect to others.”
20 C.F.R. § 655.810(c). In addition, the statute at 8 U.S.C. 1182(n)(2)(C) provides that civil
monetary penalties are to be assessed for a failure to post LCAs only if the failure is found to be
a substantial violation of the requirement.
The ALJ’s authority to review the Administrator’s assessment specifically includes a
determination of the appropriateness of a civil penalty. See Administrator, Wage and Hour
Division v. Law Offices of Anil Shaw, 2003-LCA-20 (ALJ May 19, 2004) (citing Administrator
v. Chrislin, Inc., 2002 WL 31751948 (DOL Adm.Rev.Bd)).
a) Good Faith
I have found that Respondent acted in good faith to comply with the law so as to negate a
finding of willfulness. However, it is also appropriate to address whether the Administrator
considered whether Respondent acted in good faith when it determined that Respondent’s willful
violation of posting requirements warranted civil money penalties. I accord weight to
Respondent’s argument that the Administrator did not fully consider all the appropriate factors
when making that determination.
Firstly, Mr. Reilly found Respondent’s actions willful before considering good faith,
because he believed that if he had credited Respondent with good faith, he would have been less
likely to determine willfulness. Tr. 133, 158. This suggests that the Administrator did not fully
consider whether Respondent made attempts to reach compliance, or considered how the
company might benefit from keeping records that clearly show its failure to post at third parties.
There is conflicting, credible testimony regarding Respondent’s understanding of its obligations
regarding posting. I place no weight on the fact the Respondent did not seek clarification from
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WH about posting after the 2005 investigation, because I credit Ms. Parsram’s testimony that she
believed that the company was compliant. I place little weight on whether Mr. Rehl held all of
his meetings about the 2005 inquiry with Ms. Parsram or with Mr. Gurnani, as I find it more
useful to consider the probative value of what happened after Rehl’s meetings with CTI
representatives in 2005. I find that Respondent’s progressive improvement in posting practices
and record keeping between the 2005 and 2009 investigations was not credited by the
Administrator. The potential merit of Respondent’s post-2005 efforts at compliance should have
been considered before concluding that willful violations occurred. At the very least,
Respondent’s actions should have been fully considered a factor in the consideration of whether
a reduction of civil money penalties was warranted.
b) Economic Gain
I reject the Administrator’s conclusion that Respondent benefited from economic gain as
the result of its failure to post. There is no evidence that Respondent’s posting policy was
motivated by the potential for economic gain or loss. Although Respondent has admitted to
losing some contracts due to its insistence on third party posting, that outcome was mere
speculation at the time of the Administrator’s determination. Indeed, Respondent’s insistence on
third party posting despite losing business demonstrates its commitment to complying with the
Act. Willfulness implies intent, and nothing establishes intent to avoid economic loss or to gain
an economic advantage by CTI’s posting methods. Although the evidence reflects that CTI and
its legal advisor4 believed that an attempt to post would satisfy the regulatory requirements, I do
not find that this establishes evidence that CTI realized an economic advantage through its
practices.
c) Repetitive Nature of Violation
Mr. Reilly increased the amount of civil money penalty because he believed that the 2009
investigation revealed repetitive violations. I find little basis in the record for this conclusion.
As I have noted, the number of non-immigrants for whom posting was not made in the 2005
investigation is not in evidence. I have also found, based upon the Administrator’s own
evidence, that the 2001 investigation into BIT Tech cannot be imputed to CTI. In addition,
although the 2005 and 2009 investigations demonstrated failure to post, the record establishes
that CTI kept better records and made attempts to post notice, which represents improvement
from its actions before 2005. Accordingly, I find that Mr. Reilly did not consider all of the
evidence when he concluded that civil money penalties were appropriate for a repeat violation.
Even if I were to impute the findings of the BIT Tech investigation to CTI, I would
continue to find that the evidence is inadequate on the issue of repetitive violation. Investigator
Warner uncovered 60 violations in 17 states, and the violations were considered remedied by
retroactive posting. As I have observed, the record does not establish that the focus of the 2005
investigation was posting, and no remedy was suggested despite the disclosure of posting
violations. In the 2010 investigation Respondent produced documentation of attempts to post,
4 By referring to Mr. Gurnani’s beliefs, I do not mean to infer that a defense of advice of counsel is at issue. Rather,
I give weight to Mr. Rehl’s uncontradicted testimony that Mr. Gurnani advised Mr. Rehl about industry practices
regarding posting at third party sites.
- 24 -
yet civil money penalties were imposed, despite evidence that Respondent implemented
measures to document posting and other regulatory requirements in voluntary compliance with
the law. I find that the variation in remedies and penalties demonstrates that the Administrator
did not entirely believe that Respondent engaged in repetitive violations. Moreover, as I have
observed, the record clearly shows that Respondent made changes in its posting policies that did
result in posting at actual employee work sites on some, though admittedly few, occasions.
d) Substantial Violation
I agree with the Administrator that CTI’s failure to fully comply with posting
requirements does not constitute a mere technical or procedural failure, as the company’s posting
practices did not further the purpose of protecting United States workers. However, the record
fails to demonstrate whether U.S. workers actually were impacted by the failure to post at sites
where the non-immigrant employees worked. The Administrator found that Respondent had
failed to properly post LCAs at the work sites of 67 out of 92 H-1B visa workers. There is no
evidence of how many U.S. workers worked alongside the non-immigrants. There is no
evidence that the non-immigrants even reported to another worksite with other employees. It is
entirely possible that they tele-commuted during their employment. In the absence of any
evidence establishing any impact on U.S. workers, I decline to find support for the
Administrator’s determination that Respondent’s posting policies represent a substantial
violation of the regulations.
The Administrator’s conclusion that the 2009 violations were substantial is arbitrary in
that it is inconsistent. The 2005 investigation disclosed violations that it considered not
substantial. The violations were considered so inconsequential that the evidence of record does
not identify how many violations occurred. See, Testimony of Ronald Rehl, RX-1; JX-8; JX-12.
I note that the investigation of BIT Tech identified 115 employees, of whom 108 were H-1B
non-immigrant employees. That entity had failed to post LCAs’ at “virtually every” work site of
the non-immigrant employees, and resulted in a finding that the company had failed to post
LCAs at 60 work sites in 17 states. RX 2. I find that this finding is inconsistent with the
Administrator’s stated policy of considering a 20% non-compliance rate to be a substantial
violation. I further find that by finding in 2005 that the failure to properly post LCAs at the
actual work sites is not a substantial violation, the Administrator misled Respondent regarding
the gravity of the posting requirements.
I note that Mr. Reilly was not involved in the 2005 investigation of Respondent, or the
2001 investigation of BIT Tech and I credit his testimony that he may have found substantial
violations in those instances. However, his opinion does not change the evidence that was, or
should have been, considered in the Administrator’s assessment of penalties in the 2009
investigation.
In summary, the record demonstrates that the Administrator did not properly consider all
factors in reaching its conclusion that Respondent’s posting policies following the 2005
investigation represent willful and substantial violations of the Act. I therefore find that the
Administrator’s assessment of civil money penalties in this matter is inappropriate.
- 25 -
e) Debarment
The regulations mandate that the Department of Homeland Security (DHS) shall
invalidate any current LCAs held by employers who substantially fail to post notices of LCA
filings. In addition, DHS’ invalidation includes rejection of future LCAs for a period determined
by DHS. 8 U.S.C. §1154 and §1184(c); 20 C.F.R. §655.855(a), (c) and (d). As I have found that
the Administrator has failed to establish that Respondent substantially failed to post notices of
LCA filings, I find that debarment is not appropriate.
f) Penalty for Non-Willful Violations
It is clear from the record that Respondent violated the Act by failing to properly post
LCAs at all locations where non-immigrant employees worked. However, the Administrator did
not assess CMPs for non-willful violations, and I decline to do so.
B. Failure to maintain documentation
The Administrator cited Respondent for its failure to maintain documentation that
showed that it had satisfied its obligations to inquire into the displacement of U.S. workers by its
placement of non-immigrants at secondary locations. See, 20 C.F.R. §655.738(e)(2).
Respondent’s pre-hearing report argued that certain exemptions to the requirements applied.
However, no evidence was adduced at hearing in support of this defense. I find that Respondent
has violated this regulation. No CMPs were computed.
III. CONCLUSION
For the foregoing reasons, I affirm the Administrator’s determination that Respondents
failed to provide notice of the filing of LCAs in violation of 20 C.F.R. §655.734. However, I
find that Respondent’s violations were not willful or substantial. I further find that the
Administrator did not appropriately consider all factors in reaching its conclusions and assessing
civil money penalties. I find that civil money penalties are not warranted, and further find that
debarment is not appropriate in these circumstances.
I affirm the Administrator’s determination that Respondent had failed to maintain proper
records pursuant to 20 C.F.R. §655.738(e)(2).
So ORDERED.
A
Janice K. Bullard
Administrative Law Judge
Cherry Hill, New Jersey
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