Administrator’s Motion for Summary Decision



U.S. Department of Labor Office of Administrative Law Judges
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200
(415) 625-2201 (FAX)
Issue Date: 19 July 2010
CASE NOS.: 2009-LCA-00044; 2010-LCA-00005
In the Matter of:
ADMINISTRATOR, WAGE AND HOUR DIVISION,
Complainant,
vs.
MQ SOLUTIONS LLC,
and
ELLEN ESQUERRA DURMAN,
and
MARK DURMAN,
Respondents.
Decision and Order
The Respondents, Ellen Esquerra Durman, Mark Durman, and their
business entity, MQ Solutions, LLC (also collectively ―the Durmans‖), failed to
respond to the Administrator’s January 28, 2010, Motion for Summary Decision,12
although they were warned that failing to do so would have serious consequences.3
That advice did, however, spur the Durmans to retain a lawyer who filed a notice of
1The Administrator’s Motion for Summary Decision was served on January 29, 2010, along with
declarations to support the motion, and a Request for Judicial Notice. The Administrator’s motion for
summary decision was accompanied by a statement of uncontroverted facts. That sort of statement is
required in the U.S. District Court for the Central District of California, the District where the facts
at issue took place.
2 Most of the motions, declarations, and letters the Complainant Administrator filed were
accompanied by numbered exhibits. For the sake of brevity and clarity, this Decision and Order uses
the abbreviations ―Ex.‖ and ―Exs.‖ in reference to exhibits in the singular and plural, respectively.
Wherever a citation to an exhibit or exhibits is included within the same citation clause as a motion,
declaration, letter, or other filing, the citation refers to the exhibit (or exhibits) accompanying that
document that bears (or bear) that numerical designation.
3 Order Scheduling Briefs for Motion for Summary Decision and Canceling Hearing Date, Feb. 1,
2010.
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appearance dated April 19, 2010; he was given the additional time he sought4 to
respond to the Administrator’s dispositive motion. When even that time expired,
their lawyer stated in a letter that their response would be mailed ―before the end of
the month.‖5 Even after the many extensions of the time the Respondents obtained,
the evidence the Administrator offered with his motion for summary decision
remains unopposed. The Durmans also have admitted facts by their failure to
respond to discovery demands the Administrator of the Wage and Hour Division
sent them.6
The Administrator has alleged and offered proof with his motion papers that
the Respondents violated the H-1B visa program for non-immigrant, temporary
workers created in the Immigration and Nationality Act.7 The Secretary of Labor
administers parts of that visa program. This decision enforces obligations the
Durmans took on when they applied for visas under the Secretary’s regulations.
Titled a motion for summary decision, the Administrator’s motion more
closely resembles one that seeks judgment on partial findings under Federal Rule of
Civil Procedure 52 (e). That rule provides:
If a party has been fully heard on an issue during a
nonjury trial and the court finds against the party on that
issue, the court may enter judgment against the party on
a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on
that issue.8
4 Letter from Jack W. Kortz, Esq., to Hon. William Dorsey, March 19, 2010 (seeking until June 22,
2010, to file the opposition to the motion for summary decision).
5 Letter from Jack W. Kortz, Esq., to Hon. William Dorsey, June 22, 2010.
6 Under 29 C.F.R. § 18.20(b), ―[e]ach matter of which an admission is requested is admitted unless,
within thirty (30) days after service of the request . . . the party to whom the request is directed
serves on the requesting party‖ one of three specific written forms of objection or denial. 29 C.F.R.
§ 18.20(b). ―Any matter admitted under this section is conclusively established unless the
administrative law judge on motion permits withdrawal or amendment of the admission.‖ 29 C.F.R.
§ 18.20(e). The Durmans failed to respond to any requests for admission so all are admitted by
operation of 29 C.F.R. § 18.20(b). See also Fed. R. Civ. P. 36(a)–(b), which has near identical
language and results in the same conclusive establishment of facts through requests for admission
whether affirmatively admitted or admitted through failure to timely object or deny. Since I have not
permitted withdrawal or amendment of these admissions, they are conclusively established under
§ 18.20(e). Where this Decision and Order notes the Respondents’ admitted uncontested facts, the
admissions occurred by operation of the aforementioned regulations unless otherwise stated.
7 8 U.S.C. §§ 1101(a)(15)(H)(i)(b) and 1182(n). The H-1B visa program is implemented by regulations
published at 20 C.F.R. § 655.700, et seq.
8 Fed. R. Civ. P. 52(e). The Office of Administrative Law Judges (―OALJ‖) applies the Federal Rules
of Civil Procedure to all proceedings before the ―in any situation not provided for or controlled by [the
OALJ’s procedural] rules.‖ 29 C.F.R. § 18.1(a). This is the case here.
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This matter has not proceeded to a trial, but the Respondents have had many
opportunities to be heard. The Administrator served Requests for Admission (and
other discovery demands) on Respondents MQ Solutions and Ellen Esquerra
Durman on October 19, 2009, and on Respondent Mark Durman on December 1,
2009.9 Litigants ignore admission requests at their peril. Section 18.20(b) of 29
C.F.R. provides, ―[e]ach matter of which an admission is requested is admitted
unless, within thirty (30) days after service of the request . . . the party to whom the
request is directed serves on the requesting party‖ one of three specific written
forms of objection or denial.10 The response time elapsed without any response from
the Respondents; to date, they have never replied to the requests for admissions. By
inaction, the Respondents have admitted pivotal facts in this case. ―Any matter
admitted under this section is conclusively established unless the administrative
law judge on motion permits withdrawal or amendment of the admission.‖11 No
such motion has been filed.
The Request for Judicial Notice the Administrator made on January 29,
2010, also is unopposed and granted.
The Administrator’s dispositive motion is granted. The Respondents are
ordered to pay $227,831.45 as back wages to two H-1B non-immigrant aliens and
$750.00 to a third H-1B non-immigrant alien, each of whom they sponsored to work
in the United States. They also must pay a civil penalty of $3,600.00, plus interest
on all these amounts. They are debarred from sponsoring additional aliens for
admission to the United States as non-immigrant workers under the H-1B visa
program for a period of two years.
I. Procedural Background
Under a briefing schedule ordered on February 1, 2010, the Respondents
were to respond to the Administrator’s Motion for Summary Decision by February
26, 2010.12 They didn’t. Instead, after the response was due, they asked for more
time in a letter they neglected to send to the Administrator’s lawyer. The
Administrator opposed the Respondents’ request, arguing that they knowingly and
intentionally failed to participate meaningfully in these proceedings, other than
requesting a hearing and making repeated requests for extensions of time.13 They
9 Declaration of Luis A. Garcia in Support of Complainant Administrator’s Motion for Summary
Decision Against Respondents MQ Solutions, LLC, Ellen Esquerra Durman and Mark Durman, Jan.
28, 2010 [hereinafter Decl. of L. Garcia], ¶¶ 2–8, Exs. 1–3. Exhibits 1 through 3 are the actual
Request for Admission (―RFAs‖) as served on October 19, 2009, and December 1, 2009.
10 29 C.F.R. § 18.20(b).
11 29 C.F.R. § 18.20(e); see also supra note 6.
12 Order Scheduling Briefs for Motion for Summary Decision And Cancelling Hearing Date, Feb. 1,
2010.
13 Letter from Administrator to Hon. William Dorsey, Mar. 15, 2010, at 1–5.
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had been contacted many times by the Administrator’s lawyer by telephone and by
letters, seeking to meet and confer about a number of issues, including their failures
to answer the Administrator’s discovery demands.14 They never responded.
The declaration the Administrator’s lawyer filed with the opposition to
extending the time to respond to the summary judgment motion accurately
recounted events through early March 2010.15 Additional time was nevertheless
granted to the Durmans. The timeline the Administrator offered, with events
through March 2010, is reproduced below.16
14 Id. at 6.
15 See generally Declaration of Luis A. Garcia in Support of Administrator’s Opposition to
Respondents’ Request for an Extension of Time to Respond to the Administrator’s Motion for
Summary Decision, Mar. 17, 2010 [hereinafter Mar. 17 Garcia Decl.] (detailing the Administrator’s
attempted interactions with the Respondents and the Respondents’ continual failure to cooperate or
respond throughout the discovery process).
16 The Administrator’s efforts and the OALJ’s patience with the Respondents did not end there. After
the Respondents’ ex parte letter asking for more time, they repeatedly alleged they would respond by
a date of their choosing but failed to follow through. Following the ex parte letter of March 3, 2010, I
issued a Notice of Ex Parte Contact and Warning, dated Mar. 9, 2010. The Administrator’s counsel
confirmed that he hadn’t received the ex parte letter. Letter of Louis A. Garcia to Hon. William
Dorsey, Mar. 15, 2010. The Administrator’s lawyer accompanied that confirmation with a
declaration that opposed any extension of the Respondents’ time to answer the Administrator’s
motion for summary decision. Mar. 15 Garcia Decl. at 1. An equivocal letter from Mr. Kortz followed
in which he proposed the June 22, 2010, response deadline. Letter from Jack W. Kortz, Esq., to Hon.
William Dorsey, Mar. 19, 2010. I then issued the Order for Status Report Regarding Administrator’s
Motion on April 12. 2010. Mr. Kortz entered his appearance and submitted a responsive letter on
April 19, 2010. Letter from Jack W. Kortz, Esq., to Hon. William Dorsey, Apr. 19, 2010. The
Administrator requested a status conference on May 5, 2010, but none was scheduled. Letter from
Luis A. Garcia, Esq., to Hon. William Dorsey, May 5, 2010. Nothing was heard from the Respondents
until June 25, 2010, when Mr. Kortz’s letter dated June 22, 2010, explained that he was unable to
make the self-selected June 22, 2010, deadline due to the illness of Ellen Esquerra Durman. Letter
from Jack W. Kortz, Esq., to Hon. William Dorsey, June 22, 2010. Mr. Kortz represented the
Durmans’ response would be sent by the ―end of the month.‖ Id. On June 30, 2010, counsel for the
Administrator e-mailed Mr. Kortz, asking him to confirm that the Durmans’ response to the Motion
for Summary Decision would be sent that day. See Exhibit accompanying Letter from Luis A. Garcia,
Esq. to Hon. William Dorsey, July 9, 2010. Mr. Kortz again apologized and ultimately explained he
planned to send the response by overnight delivery to arrive on Tuesday, July 6, 2010. Id. When the
response was still not filed on July 7, 2010, the Administrator’s counsel contacted Mr. Kortz again,
and he provided no time estimate for the document’s delivery. Letter from Luis A. Garcia, Esq. to
Hon. William Dorsey, July 9, 2010, at 2. The Administrator submitted his letter requesting the
prompt resolution of this case on July 9, 2010. Id. at 1. At this time, the Respondents’ have yet to file
a response or any other documents.
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A. Chronology Of Significant Litigation Events
Date Event Response
September 11, 2009 Administrator’s
Determination Letter to
MQ Solutions, LLC (―MQ‖)
and Ellen Esquerra
Durman.
Copy served on MQ and
Ellen Esquerra Durman.
September 21, 2009 Letter from Ellen Durman
requesting hearing on
Determination Letter.
Copy received by the
Administrator.
October 1, 2009 Notice of Hearing and Prehearing
Order.
Initial disclosures are due
by October 16, 2009 from
MQ
and Ellen Esquerra
Durman.
October 7, 2009 Phone call to meet and
confer about Pre-hearing
Order dated October 1,
2009.
No response from MQ or
Ellen Esquerra Durman.
October 8, 2009 Phone call to meet and
confer about Pre-hearing
Order dated October 1,
2009.
No response from MQ or
Ellen Esquerra Durman.
October 9, 2009 Letter to meet and confer
about Pre-hearing Order
dated October 1, 2009.
No response from MQ or
Ellen Esquerra Durman.
October 16, 2009 Administrator serves its
Initial Disclosures.
Copy served on MQ and
Ellen Esquerra Durman.
October 16, 2009 Initial Disclosures are due
from MQ and Ellen
Esquerra Durman.
No initial disclosures
received from MQ or
Ellen Esquerra Durman.
October 16, 2009 Administrator’s First Set
of Interrogatories
propounded on MQ and
Ellen Esquerra Durman.
No responses received
from MQ or Ellen
Esquerra Durman.
October 16, 2009 Administrator’s First Set
of Request for Production
of Documents propounded
on MQ and Ellen Esquerra
Durman.
No responses received
from MQ or Ellen
Esquerra Durman.
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Date Event Response
October 19, 2009 Administrator’s First Set
of Request for Admissions
propounded on MQ and
Ellen Esquerra Durman.
No responses received
from MQ or Ellen
Esquerra Durman.
November 3, 2009 Administrator’s
Determination Letter to
Mark Durman.
Copy served on Mark
Durman.
November 17, 2009 Letter from Mark Durman
requesting hearing on
Determination Letter.
Copy received by the
Administrator.
November 30, 2009 Notice of Hearing and Prehearing
Order and Order
Consolidating Cases.
Initial disclosures are due
from Mark Durman by
December 15, 2009.
November 30, 2009 Order Consolidating
Cases.
Copy served on
Administrator and
Respondents.
December 1, 2009 Meet and confer letter sent
to MQ and Ellen Esquerra
Durman regarding past
due responses to
interrogatories and
request for production of
documents.
No response from MQ or
Ellen Esquerra Durman.
December 1, 2009 Administrator’s First Set
of Interrogatories
propounded on Mark
Durman.
No responses received
from Mark Durman.
December 1, 2009 Administrator’s First Set
of Request for Production
of Documents propounded
on Mark Durman.
No responses received
from Mark Durman.
December 1, 2009 Administrator’s First Set
of Request for Admissions
propounded on Mark
Durman
No responses received
from Mark Durman.
December 2, 2009 Administrator’s serves its
Initial Disclosures.
A copy of initial
disclosures served on
Mark Durman.
December 9, 2009 Letter to Mark Durman
regarding continuing
discovery cut-off date.
No responses received
from Mark Durman.
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Date Event Response
December 10, 2009 Final meet and confer
letter sent to MQ and
Ellen Esquerra Durman
regarding past due
responses to
interrogatories and
request for production of
documents
No response from MQ or
Ellen Esquerra Durman.
December 15, 2009 Initial Disclosures are due
from Mark Durman.
No initial disclosures
received from Mark
Durman.
December 15, 2009 Phone call to Ellen
Esquerra Durman on
Administrator’s motion to
compel responses to
interrogatories and
request for production of
documents.
No responses from Ellen
Esquerra Durman.
December 16, 2009 Second phone call to Ellen
Esquerra Durman on
Administrator’s motion to
compel responses to
interrogatories and
request for production of
documents.
No responses from Ellen
Esquerra Durman.
December 17, 2009 Motion to Compel
Respondent Ellen
Esquerra Durman’s Initial
Disclosure and Responses
to Administrator’s First
Set of Interrogatories and
First Set of Request for
Production of Documents
filed.
No opposition to motion
to compel filed by MQ or
by Ellen Esquerra
Durman or
communication to meet
and confer.
December 30, 2009 Order Regarding
Discovery and Extending
Discovery Deadlines.
Ellen Esquerra Durman
ordered to respond to
Administrator’s First Set
of Interrogatories and
First Set of Request for
Production of Documents
by January 13, 2010.
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Date Event Response
January 7, 2010 Meet and confer letter sent
to Mark Durman
regarding past due
responses to
interrogatories, request for
production of documents
and requests for
admissions.
No response from Mark
Durman or
communication to meet
and confer.
January 13, 2010 Motion to Compel
Respondent Mark
Durman’s Initial
Disclosure and Responses
to Administrator’s First
Set of Interrogatories and
First Set of Request for
Production of Documents
filed.
No response from Mark
Durman or
communication to meet
and confer.
January 13, 2010 Last day for Ellen
Esquerra Durman to serve
initial disclosures and
respond to Administrator’s
First Set of Interrogatories
and First Set of Request
for Production of
Documents by Court’s
Order Regarding
Discovery and Extending
Discovery Deadlines dated
12/30/2009.
No responses received
from Ellen Esquerra
Durman or
communication to meet
and confer.
January 15, 2010 Motion for Order Striking
Respondent Ellen
Esquerra Durman’s
Request for Hearing for
Her failure to Comply with
Court’s Order to Compel
filed.
No response received
from Ellen Esquerra
Durman or
communication to meet
and confer.
January 19, 2010 Order Regarding
Discovery and Extending
Discovery and Pre-Hearing
Submission Deadlines.
Mark Durman ordered to
respond to
Administrator’s First Set
of Interrogatories and
First Set of Request for
Production of Documents
by January 28, 2010.
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Date Event Response
January 28, 2010 Last day for Mark Durman
to serve initial disclosures
and respond to
Administrator’s First Set
of Interrogatories and
First Set of Request for
Production of Documents
by Court’s Order
Regarding Discovery and
Extending Discovery
Deadlines dated
12/30/2009.
No responses received
from Mark Durman or
communication to meet
and confer.
January 28, 2010 Motion for Summary
Decision by Complainant,
Administrator, against
Respondents MQ, Ellen
Esquerra Durman and
Mark Durman filed.
Copy served on
Respondents.
February 1, 2010 Order Scheduling Briefs
for Motion for Summary
Decision and Cancelling
Hearing Date.
Last day for Respondents
to file opposition to
Motion for Summary
Decision set for February
26, 2010.
February 26, 2010 Last day for Respondents
to serve opposition to
Motion for Summary
Decision.
No response received
from Respondents or
communication to meet
and confer.
March 3, 2010 Letter from Respondents
to OALJ requesting an
extension of time to
respond to Motion for
Summary Decision.
Copy not sent to
Administrator’s counsel.
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II. Uncontroverted Facts17
1. MQ is a California limited liability company18 that engaged in software
development out of Whittier, California, but no longer conducts
business.19
2. MQ provided software, professional services and education to
companies using IBM’s message-oriented middleware products to
conduct e-commerce.20
3. Since its organization in June 1999, Ellen Esquerra Durman and Mark
Durman have been MQ’s only members.21
17 In their hearing requests, dated September 21, 2009, and November 17, 2009, Respondents Ellen
Esquerra Durman and Mark Durman, respectively, alleged several inaccuracies in the Wage and
Hour Division’s determination and made various excuses for their actions. Declaration of Eric
Williams in Support of Complainant Administrator’s Motion for Summary Decision Against
Respondents MQ Solutions, LLC, Ellen Esquerra Durman and Mark Durman, Jan. 28, 2010
[hereinafter Decl. of E. Williams], Exs. 19 at 252–53, 21 at 283–84. They never produced any
evidence to support these assertions, many of which were legally irrelevant even if proven. Their
hearing requests were submitted before the Administrator’s Requests for Admission were
propounded to the Durmans. The unproven allegations in their requests for hearing do not overcome
the facts they admitted through their inaction.
18 Request for Official Notice in Support of Complainant Administrator’s Motion for Summary
Decision Against Respondents MQ Solutions, LLC, Ellen Esquerra Durman and Mark Durman, Jan.
28, 2010 [hereinafter Request for Judicial Notice], Nos. 1–5, Exs. 1–5 (certified files: SRC-05-151-
50349, WAC-02-240-51928, WAC-05-197-50163, WAC-06-217-51886, WAC 04-124-50543); Decl. of E.
Williams, ¶¶ 3–4, Exs. 2–3.
19 Request for Judicial Notice, Nos. 1–5, Exs. 1–5 (certified files; SRC-05-151-50349, WAC-02-240-
51928, WAC-05-197-50163, WAC-06-217-51886, WAC 04-124-50543); Decl. of E. Williams, ¶¶ 2, 4,
49, 51, Exs. 1, 4, 19, 21 (admitted).
20 Request for Judicial Notice, Nos. 1–5, Exs. 1–5 (certified files: SRC-05-151-50349, WAC-02-240-
51928, WAC-05-197-50163, WAC-06-217-51886, WAC 04-124-50543; Decl. of E. Williams, ¶¶ 2, 4,
Exs. 1, 4; Declaration of Nigel St. John Mells in Support of Complainant Administrator’s Motion for
Summary Decision Against Respondents MQ Solutions, LLC, Ellen Esquerra Durman and Mark
Durman, Jan. 28, 2010 [hereinafter Decl. of N. Mells], ¶ 7; Declaration of Renato A. Eleazar in
Support of Complainant Administrator’s Motion for Summary Decision Against Respondents MQ
Solutions, LLC, Ellen Esquerra Durman and Mark Durman, Jan. 28, 2010 [hereinafter Decl. R.
Eleazar], ¶ 7.
21 Request for Judicial Notice, Nos. 1–5, Exs. 1–5 (certified files: SRC-05-151-50349, WAC-02-240-
51928, WAC-05-197-50163, WAC-06-217-51886, WAC 04-124-50543); Decl. of L. Garcia, ¶¶ 2–8, Exs.
1–3, at RFA 1 (admitted); Decl. of E. Williams, ¶ 5; Decl. N. Mells, ¶ 16; Decl. of R. Eleazar, ¶ 7. A
similar set of Requests for Admission were propounded to each Respondent. The Requests for
Admission (―RFAs‖) are the three numbered exhibits accompanying Mr. Garcia’s January 28, 2010
declaration. Exhibit 1 contains RFAs propounded to MQ Solutions, Exhibit 2 contains RFAs
propounded to Ellen Esquerra Durman, and Exhibit 3 contains RFAs propounded to Mark Durman.
Each request for admission (e.g. RFA 1) was the same in each set. Pagination within the RFAs as
submitted by the Administrator is noted as further ―Exhibits‖ and in some places as ―exhibit, page.‖
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4. Since its organization in June 1999, Ellen Esquerra Durman has been
MQ’s only manager.22
5. Since its organization in June 1999, Mark Durman has been MQ’s
Chief Executive Officer (―CEO‖) and Chief Training Officer (―CTO‖).23
6. Since its organization in June 1999, Ellen Esquerra Durman has been
MQ’s Chief Operating Officer (―COO‖) and Chief Financial Officer
(―CFO‖).24
7. There is a written management agreement between MQ and Ellen
Esquerra Durman.25
8. Since its organization in June 1999, the Durmans have exclusively
managed and controlled MQ.26
9. Since its organization in June 1999, MQ has been undercapitalized.27
10. Since 2001, the Durmans have made no capital contributions to MQ.28
11. Since taxable year 2001, MQ has been insufficiently capitalized to
meet its obligations to its creditors.29
12. Since taxable year 2001, MQ has been insolvent.30
Thus, a pinpoint citation to a particular RFA and a further page within the exhibits detailing
support for that RFA might appear as follows: Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 25, Ex. 14.
22 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 2, 5 (admitted); Decl. of E. Williams, ¶¶ 2–5, Exs. 1–4;
Decl. of N. Mells, ¶ 16; Decl. of R. Eleazar, ¶ 7.
23 Request for Judicial Notice, Nos. 1–5, Exs. 1–5 (certified files: SRC-05-151-50349, WAC-02-240-
51928, WAC-05-197-50163, WAC-06-217-51886, WAC 04-124-50543); Decl. of L. Garcia, ¶¶ 2–8, Exs.
1–3 at RFA 3 (admitted); Decl. of E. Williams, ¶¶ 2–5, Exs. 1–4; Decl. of N. Mells, ¶ 7; Decl. of R.
Eleazar, ¶ 7.
24 Request for Judicial Notice, Nos. 1–5, Exs. 1–5 (certified files: SRC-05-151-50349, WAC-02-240-
51928, WAC-05-197-50163, WAC-06-217-51886, WAC 04-124-50543); Decl. of L. Garcia, ¶¶ 2–8, Exs.
1–3 at RFA 4 (admitted); Decl. of E. Williams, ¶¶ 2–5, Exs. 1–4; Decl. of N. Mells, ¶ 16.
25 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 6 (admitted).
26 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 7 (admitted); Decl. of E. Williams, ¶¶ 2–5, Exs. 1–4;
Decl. of N. Mells, ¶¶ 7, 16; Decl. of R. Eleazar, ¶ 7.
27 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 8 (admitted); Decl. of N. Mells, ¶ 16, Ex. 9.
28 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 9 (admitted).
29 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 10 (admitted).
30 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 11 (admitted).
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13. From 2001 to and including year 2008, MQ has not paid its California
franchise fee.31
14. MQ failed to withhold federal income taxes for the wages paid Mells
set forth in the Form W-2 Wage and Tax Statement (―W-2‖) for year
2005 issued by MQ.32
15. MQ failed to withhold federal income taxes for the wages paid Mells as
set forth in the W-2 for year 2006 issued by MQ.33
16. MQ failed to withhold federal income taxes for the wages paid Mells as
set forth in the W-2 for year 2007 issued by MQ.34
17. MQ did not issue Mells a W-2 for year 2008 for wages paid to him by
MQ.35
18. MQ failed to withhold federal income taxes for the wages paid Eleazar
as set forth in the W-2 for year 2002 issued by MQ.36
19. MQ failed to withhold California state income taxes for the wages paid
Eleazar as set forth in the W-2 for year 2002 issued by MQ.37
20. MQ failed to withhold federal income taxes for the wages paid Eleazar
as set forth in the W-2 for year 2003 issued by MQ.38
21. MQ failed to withhold California state income taxes for the wages paid
Eleazar as set forth in the W-2 for year 2003 issued by MQ.39
22. MQ failed to withhold federal income taxes for the wages paid Eleazar
as set forth in the W-2 for year 2004 issued by MQ.40
31 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 12 (admitted).
32 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 25, 27, 87, Ex. 14.
33 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 28, 30, 88, Ex. 15 (admitted).
34 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 31, 33, 89, Ex. 16 (admitted).
35 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 34; Decl. of N. Mells, ¶ 25 (admitted).
36 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 39, 40, 90, Ex. 17 (admitted).
37 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 39, 41, 90, Ex. 17 (admitted); Decl. of R. Eleazar,
¶¶ 25–26, Exs. 17, 18.
38 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 42, 43, 91, Ex. 18 (admitted).
39 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 42, 44, 91, Ex. 18 (admitted); Decl. of R. Eleazar,
¶¶ 25–26, Exs. 17, 18.
40 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 45, 46, 92, Ex. 19 (admitted).
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23. MQ failed to withhold California state income taxes for the wages paid
Eleazar as set forth in the W-2 for year 2004 issued by MQ.41
24. MQ failed to withhold federal income taxes for the wages paid Eleazar
as set forth in the W-2 for year 2005 issued by MQ.42
25. MQ failed to withhold California state income taxes for the wages paid
Eleazar as set forth in the W-2 for year 2005 issued by MQ.43
26. MQ failed to withhold federal income taxes for the wages paid Eleazar
as set forth in the W-2 for year 2006 issued by MQ.44
27. MQ failed to withhold California state income taxes for the wages paid
Eleazar as set forth in the W-2 for year 2006 issued by MQ.45
28. MQ failed to withhold federal income taxes for the wages paid Nguyen
for year 2004.46
29. MQ failed to withhold state income taxes for the wages paid Nguyen
for year 2004.47
A. MQ and the Durmans misrepresented material facts on the
LCAs in violation of 20 C.F.R. § 655.730
30. The LCA for ETA Case No. I-05102-1677461 submitted by MQ was
signed by Ellen Esquerra Durman on April 14, 2005.48
31. The period of employment for the LCA for ETA Case No. I-05102-
1677461 was June 1, 2005, to May 31, 2008.49
41 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 45, 47, 91, Ex. 19 (admitted); Decl. of R. Eleazar,
¶¶ 25–26, Exs. 17, 18.
42 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 48, 49, 93, Ex. 20 (admitted)
43 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 48, 50, 93, Ex. 20 (admitted); Decl. of R. Eleazar,
¶¶ 25–26, Exs. 17, 18.
44 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 61, 62, 94, Ex. 21(admitted).
45 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 61, 63, 94, Ex. 21 (admitted); Decl. of R. Eleazar,
¶¶ 25–26, Exs. 17, 18.
46 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 69, 70 (admitted).
47 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 69, 71 (admitted).
48 Request for Judicial Notice, No. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of L. Garcia, ¶¶ 2–
8, Exs. 1–3 at RFAs 17, 74, Ex. 1 (admitted); Decl. of E. Williams, ¶ 9, Ex. 6; Decl. of N. Mells, ¶ 19,
Ex. 12.
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32. The prevailing wage rate required under the LCA for ETA Case No. I-
05102-1677461 was $110,000.00 per year for Houston, Texas, and
Whittier, California.50
33. The LCA for ETA Case No. I-02197-0174791 submitted by MQ was
signed by Mark Durman on July 19, 2002.51
34. The period of employment for the LCA for ETA Case No. I-02197-
0174791 was July 22, 2002, to June 24, 2005.52
35. The prevailing wage rate required under the LCA for ETA Case No. I-
02197-0174791 was $110,000.00 per year for Santa Clara, California.53
36. The LCA for ETA Case No. I-02197-0174811 submitted by MQ was
signed by Mark Durman on July 19, 2002.54
37. The period of employment for the LCA for ETA Case No. I-02197-
0174811 was July 22, 2002, to June 24, 2005.55
38. The prevailing wage rate required under the LCA for ETA Case No. I-
02197-0174811 was $110,000.00 per year for Whittier, California.56
49 Request for Judicial Notice, No. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of L. Garcia, ¶¶ 2–
8, Exs. 1–3 at RFAs 17, 19, 74, Ex. 1 (admitted); Decl. of E. Williams, ¶¶ 9, 26, 31, Ex. 6; Decl. of N.
Mells, ¶ 19, Ex. 12.
50 Request for Judicial Notice, No. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of L. Garcia, ¶¶ 2–
8, Exs. 1–3 at RFAs 17, 20, 74, Ex. 1 (admitted); Decl. of E. Williams, ¶¶ 9, 26, 31, Ex. 6; Decl. of N.
Mells, ¶ 19, Ex. 12
51 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 35, 76, Ex. 3 (admitted); Decl. of E. Williams, ¶¶ 14, 26, 33, 34, Ex. 8; Decl.
of R. Eleazar, ¶ 9, Ex. 5
52 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 35, 37, 76, Ex. 3 (admitted); Decl. of E. Williams, ¶¶ 14, 26, 33, 34, Ex. 8;
Decl. of R. Eleazar, ¶ 9, Ex. 5.
53 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 35, 38, 76, Ex. 3 (admitted); Decl. of E. Williams, ¶¶ 14, 26, 33, 34, Ex. 8;
Decl. of R. Eleazar, ¶ 9, Ex. 5
54 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Request for Judicial
Notice, No. 3, Ex. 3 (certified file WAC-02-240-51928); Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 80,
Ex. 7 (admitted); Decl. of E. Williams, ¶¶ 14, 26, 33, 34, Ex. 8.
55 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFA 80, Ex. 7 (admitted); Decl. of E. Williams, ¶¶ 14, 26, 33, 34, Ex. 8.
56 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFA 80, Ex. 7 (admitted); Decl. of E. Williams, ¶¶ 14, 26, 33, 34, Ex. 8.
- 15 -
39. LCA for ETA Case No. I-05157-1812295 submitted by MQ was signed
by Ellen Esquerra Durman on June 13, 2005.57
40. The period of employment for the LCA for ETA Case No. I-05157-
1812295 was June 24, 2005, to June 24, 2006.58
41. The prevailing wage rate under the LCA for ETA Case No. I-05157-
1812295 was $110,000.00 per year for Santa Clara California, and
Whittier, California.59
42. The LCA for ETA Case No. I-06157-2616207 submitted by MQ was
signed by Ellen Esquerra Durman on June 20, 2006.60
43. The period of employment under the LCA for ETA Case No. I-06157-
2616207 was June 25, 2006, to June 24, 2007.61
44. The prevailing wage rate under the LCA for ETA Case No. I-06157-
2616207 was $110,000.00 per year for Santa Clara California, and
Whittier, California.62
45. The LCA for ETA Case No. I-04042-0952005 submitted by MQ was
signed by Ellen Esquerra Durman on February 17, 2004.63
46. The period of employment under the LCA for ETA Case No. I-04042-
0952005 was March 28, 2004, to June 22, 2006.64
57 Request for Judicial Notice, No. 3, Ex. 3 (certified file WAC-05-197-50163); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 51, 78, Ex. 5 (admitted); Decl. of E. Williams, ¶¶ 15, 26, 33, 34, Ex. 10;
Decl. of R. Eleazar, ¶ 14, Ex. 10.
58 Request for Judicial Notice, No. 3, Ex. 3 (certified file WAC-05-197-50163); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 51, 53, 78, Ex. 5 (admitted); Decl. of E. Williams, ¶¶ 15, 26, 33 and 34, Ex.
10; Decl. of R. Eleazar, ¶ 14, Ex. 10.
59 Request for Judicial Notice, No. 3, Ex. 3 (certified file WAC-05-197-50163); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 51, 54, 78, Ex. 5 (admitted); Decl. of E. Williams, ¶¶ 15, 26, 33, 34, Ex. 10;
Decl. of R. Eleazar, ¶ 14, Ex. 10.
60 Request for Judicial Notice, No. 4, Ex. 4 (certified file WAC-06-217-51886); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 56, 79, Ex. 6 (admitted); Decl. of E. Williams, ¶¶ 16, 26, 33, 34, Ex. 12;
Decl. of R. Eleazar, ¶ 17, Ex. 13.
61 Request for Judicial Notice, No. 4, Ex. 4 (certified file WAC-06-217-51886); Decl. of L. Garcia,
¶¶¶ 2–8, Exs. 1–3 at RFAs 56, 58, 79, Ex. 6 (admitted); Decl. of E. Williams, ¶¶ 16, 26, 33, 34, Ex. 12;
Decl. of R. Eleazar, ¶ 17, Ex. 13.
62 Request for Judicial Notice, No. 4, Ex. 4 (certified file WAC-06-217-51886); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 56, 59, 79, Ex. 6 (admitted); Decl. of E. Williams, ¶¶ 16, 26, 33, 34, Ex. 12;
Decl. of R. Eleazar, ¶ 17, Ex. 13.
63 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 64, 81, Ex. 8 (admitted); Decl. of E. Williams, ¶¶ 19, 26, Ex. 15.
- 16 -
47. The prevailing wage rate required under the LCA for ETA Case No. I-
04042-0952005 was $117,000.00 for Whittier, California.65
B. MQ and the Durmans failed to pay the prevailing wages to the
H-1B nonimmigrant workers in violation of 20 C.F.R. § 655.731
1. Nigel St. John Mells
48. MQ sent Nigel St. John Mells (―Mells‖) an offer letter of employment
dated April 10, 2001, (―Offer Letter‖) with the terms of his
employment.66
49. Mells agreed to all of the terms set forth in the Offer Letter.67
50. Mells and Ellen Esquerra Durman signed the Offer Letter, and Mells
commenced employment with MQ on May 1, 2001.68
51. Mells’ H-1B visa was transferred to MQ, and he was employed by MQ
as a Senior Middleware Consultant at the prevailing wage of
$110,000.00 per year.69
52. Mells’ H-1B visa was extended by MQ from September 7, 2001, to
January 21, 2004.70
53. Mells worked for MQ from May 1, 2001 to December 31, 2001, and
there was no benching or unproductive time during 2001.71
54. Pursuant to the Form W-2 Wage and Tax Statement (―W-2‖) issued to
Mells by MQ for year 2001, Mells was paid $67,222.32.72
64 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 64, 66, 81, Ex. 8 (admitted); Decl. of E. Williams, ¶¶ 19, 26, 36, Ex. 15.
65 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 64, 67, 81, Ex. 8 (admitted); Decl. of E. Williams, ¶¶ 19, 26, 36, Ex. 15.
66 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 83, Ex. 10 (admitted); Decl. of E. Williams, ¶ 7; Decl. of
N. Mells, ¶¶ 7–8, Ex. 4.
67 Decl. of N. Mells, ¶ 8, Ex. 4.
68 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 83, Ex. 10 (admitted); Decl. of E. Williams, ¶¶ 7–8;
Decl. of N. Mells, ¶ 8, Ex. 4.
69 Request for Judicial Notice, Nos. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of E. Williams,
¶¶ 7, 8, 29, 30, Exs. 5, 17; Decl. of N. Mells, ¶¶ 8–9, Ex. 5.
70 Request for Judicial Notice, Nos. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of E. Williams,
¶¶ 7–8, Ex. 5; Decl. of N. Mells, ¶¶ 6–9, Ex. 5.
71 Decl. of E. Williams, ¶¶ 29– 30, Ex. 17; Decl. of N. Mells, ¶¶ 10–11.
- 17 -
55. Based on the prevailing wage rate for 2001, MQ should have paid
Mells $73,333.28.73
56. Mells worked for MQ during all of 2002, and there was no benching
time during 2002.74
57. Pursuant to W-2 Mells received for 2002 from MQ, Mells was paid
$82,500.12.75
58. Based on the prevailing wage rate for 2002, MQ should have paid
Mells $110,000.00.76
59. Mells worked for MQ during all of 2003, and there was no benching
time during 2003.77
60. Pursuant to W-2 Mells received for 2003 from MQ, Mells was paid
$105,049.92.78
61. Based on the prevailing wage rate for 2003, MQ should have paid
Mells $110,000.00.79
62. In 2002, MQ and the Durmans borrowed $30,000.00 from Mells and
his spouse Ellen as evidenced by a Secured Promissory Note dated
April 22, 2002 (―Note‖).80
63. The Note was repaid by the Durmans.81
72 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 84, Ex. 11 (admitted); Decl. of E. Williams, ¶¶29–30,
Ex. 17; Decl. of N. Mells, ¶ 10, Ex. 6.
73 Request for Judicial Notice, Nos. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of E. Williams,
¶¶ 7, 8, 29, 30, Exs. 5, 17; Decl. of N. Mells, ¶¶ 10–11, Ex. 6.
74 Decl. of E. Williams, ¶¶ 29– 30, Ex. 17; Decl. of N. Mells, ¶¶ 12–13, Ex. 7.
75 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 85, Ex. 12 (admitted); Decl. of E. Williams, ¶ 29–30,
Ex. 17; Decl. of N. Mells, ¶¶ 12–13, Ex. 7.
76 Request for Judicial Notice, Nos. 1, Ex. 1(certified file SRC-05-151-50349); Decl. of E. Williams,
¶¶ 7, 8, 29, 30, Exs. 5, 17; Decl. of N. Mells, ¶¶ 12–13, Ex. 7.
77 Decl. of E. Williams, ¶¶ 29–30, Ex. 17; Decl. of N. Mells, ¶¶ 14–15, Ex. 8.
78 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 86, Ex. 13 (admitted); Decl. of E. Williams, ¶¶ 29–30,
Ex. 17; Decl. of N. Mells, ¶¶ 14–15, Ex. 8.
79 Request for Judicial Notice, Nos. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of E. Williams,
¶¶ 7, 8, 29, 30, Exs. 5, 17; Decl. of N. Mells, ¶¶ 14–15, Exs. 8.
80 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 96, Ex. 23 (admitted); Decl. of N. Mells, ¶¶ 16–17, Exs.
9–10.
81 Decl. of N. Mells, ¶¶ 16–17, Exs. 9–10.
- 18 -
64. As part of the Offer Letter, MQ agreed to sponsor an extension of
Mells’ H-1B visa to continue to work for MQ, but failed to do so.82
65. Mells’ H-1B visa expired on January 21, 2004, and he and his spouse
departed the United States on April 9, 2004.83
66. On April 14, 2005, MQ submitted a Petition for a Nonimmigrant
Worker to re-employ Mells signed by Ellen Esquerra Durman.84
67. The period of employment for Mells was June 1, 2005, to May 31,
2008.85
68. Mells worked for MQ from October 6, 2005 to December 31, 2005, and
there was no benching time during 2005.86
69. Mells received a W-2 from MQ for 2005.87
70. In 2005, Mells actually received $19,458.29 in wages and other
payments from MQ.88
71. MQ did not pay Mells the wages set forth in the W-2 for year 2005
issued by MQ to Mells.89
72. MQ did not pay Mells the prevailing wage rate under the LCA for ETA
Case No. I-05102-1677461 during year 2005.90
73. Mells worked for MQ for all of 2006, and there was no benching time
during 2006.91
82 Decl. of E. Williams, ¶ 8; Decl. of N. Mells, ¶ 18, Ex. 4.
83 Request for Judicial Notice, Nos. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of E. Williams,
¶ 8; Decl. of N. Mells, ¶ 18.
84 Request for Judicial Notice, Nos. 1, Ex. 1(certified file SRC-05-151-50349); Decl. of L. Garcia, ¶¶ 2–
8, Exs. 1–3 at RFAs 18, 75, Ex. 2(admitted); Decl. of E. Williams, ¶ 9, Ex. 6.
85 Request for Judicial Notice, Nos. 1, Ex. 1 (certified file SRC-05-151-50349); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 17, 19, 75, Ex. 2 (admitted); Decl. of E. Williams, ¶ 9, Ex. 6; Decl. of N.
Mells, ¶ 9, Ex. 12.
86 Decl. of E. Williams, ¶¶ 9, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶19–21, Ex. 13.
87 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 25, 87, Ex. 14 (admitted); Decl. of N. Mells, ¶ 21, Ex.
13.
88 Decl. of E. Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–33, Exs. 12, 18, 19.
89 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 25, 26, 87, Ex. 14 (admitted); Decl. of N. Mells, ¶¶ 21,
33, Exs. 12, 13, 18, 19.
90 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 21, 25, 26, 74, 87 (admitted), Exs. 1, 14; Decl. of E.
Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–33, Exs. 12, 18, 19.
- 19 -
74. Mells received a W-2 from MQ for 2006.92
75. MQ did not pay Mells the wages set forth in the W-2 for year 2006
issued by MQ to Mells.93
76. In 2006, Mells actually received $67,647.47 in wages and other
payments from MQ.94
77. MQ did not pay Mells the prevailing wage rate under the LCA for ETA
Case No. I-05102-1677461 during year 2006.95
78. Mells worked for MQ for all of 2007, and there was no benching time
during 2007.96
79. Mells received a W-2 from MQ for 2007.97
80. MQ did not pay Mells the wages set forth in the W-2 for year 2007
issued by MQ to Mells.98
81. In 2007, Mells actually received $68,000.00 in wages and other
payments from MQ.99
82. MQ did not pay Mells the prevailing wage rate under the LCA for ETA
Case No. I-05102-1677461 during year 2007.100
83. On April 23, 2008, Mark Durman sent Mells and an e-mail message
that included an e-mail message dated April 22, 2008, from MQ’s
91 Decl. of E. Williams, ¶¶ 9, 29, and 31, Ex. 17; Decl. of N. Mells, ¶ 22, Ex. 14.
92 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 28, 88, Ex. 15 (admitted); Decl. of N. Mells, ¶ 22, Ex.
14.
93 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 28, 29,88, Ex. 15 (admitted); Decl. of N. Mells, ¶¶ 22,
34, Exs. 12, 14, 18, 19.
94 Decl. of E. Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–32,34, Exs. 12, 18, 19.
95 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 22, 28, 29, 74, 88, Exs. 1, 14 (admitted); Decl. of E.
Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–32, 34, Exs. 12, 18, 19.
96 Decl. of E. Williams, ¶¶ 9, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 23, 14, Exs. 15–16.
97 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 31 and 89, Ex. 16 (admitted); Decl. of N. Mells, ¶¶ 23–
24, Exs. 15–16.
98 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 31, 32, 89, Ex. 16 (admitted); Decl. of N. Mells, ¶¶ 24,
35, Exs. 12, 16, 18, 19.
99 Decl. of E. Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–32, 35, Exs. 12, 18, 19.
100 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 23, 31, 32, 74, 89, Exs. 1, 16 (admitted); Decl. of E.
Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–32, 35, Exs. 12, 18, 19.
- 20 -
immigration attorney, John Taussig, discussing Mells’ employment
with MQ, the failure of MQ to pay Mells the prevailing wage of
$110,000.00 per year for years 2006 and 2007, as well as MQ’s efforts
to renew Mell’s H-1B visa, which MQ failed to do.101
84. Mells worked for MQ from January 1, 2008, to May 31, 2008, and there
was no benching during 2008.102
85. Mells did not receive a W-2 from MQ for 2008.103
86. Mells actually received $8,000.00 in wages and other payments from
MQ.104
87. MQ did not pay Mells the prevailing wage rate under the LCA for ETA
Case No. I-05102-1677461 during year 2008.105
88. There was no unproductive time during Mells employment with MQ.106
89. Mells was not terminated by MQ prior to the expiration of his H-1B
visas.107
90. MQ did pay for Mells’ transportation back to the United Kingdom
when his H-1B visa expired on May 31, 2008.108
2. Renato A. Eleazar
91. In July 2002, Renato A. Eleazar accepted a position with MQ as a
Software Engineer working out of his home in Santa Clara, California
and MQ’s business office in Whitter, California.109
92. On July 19, 2002, MQ submitted a Petition for a Nonimmigrant
Worker signed by Mark Durman to employ Eleazar.110
101 Decl. of E. Williams, ¶ 10, Ex. 7, Decl. of N. Mells, ¶ 25, Ex. 17.
102 Decl. of E. Williams, ¶¶ 9, 29, 31, Ex. 17; Decl. of N. Mells, ¶ 25, Ex. 17.
103 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 34 (admitted); Decl. of N. Mells, ¶ 25.
104 Decl. of E. Williams, ¶¶ 28, 29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–32, 36, Exs. 12, 18, 19.
105 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 24, 74, Ex. 1 (admitted); Decl. of E. Williams, ¶¶ 28,
29, 31, Ex. 17; Decl. of N. Mells, ¶¶ 30–32, 35, Exs. 12, 18, 19.
106 Decl. of E. Williams, ¶ 9; Decl. of N. Mells, ¶ 27.
107 Decl. of N. Mells, ¶ 28.
108 Decl. of N. Mells, ¶ 29.
109 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 35, 37, 76, 80, Exs. 3, 7 (admitted); Decl. of E.
Williams, ¶ 14, Exs. 8–9; Decl. of R. Eleazar, ¶¶ 7–9, Ex. 5–6.
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93. On July 24, 2002, Eleazar’s H-1B visa was transferred to MQ, and he
was employed by MQ as a Software Engineer at the prevailing wage
was $110,000.00 per year.111
94. Eleazar’s H-1B visa was extended by MQ from February 5, 2003, to
June 24, 2005.112
95. Eleazar worked for MQ from August 5, 2002, to December 31, 2002,
and there was no benching time during 2002.113
96. Eleazar received a W-2 from MQ for 2002.114
97. Eleazar worked for MQ for all of 2003, and there was no benching time
during 2003.115
98. Eleazar received a W-2 from MQ for 2003.116
99. Eleazar worked for MQ for all of 2004, and there was no benching time
during 2004.117
100. Eleazar received a W-2 from MQ for 2004.118
101. Eleazar’s H-1B visa was extended by MQ from June 25, 2005, to June
24, 2006.119
110 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 36, 77, Ex. 4 (admitted); Decl. of E. Williams, ¶ 14, Ex. 8; Decl. of R.
Eleazar ¶ 10, Ex. 6 .
111 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 35, 37, 38, 76, 77, 80, Exs. 3, 4, 7 (admitted); Decl. of E. Williams, ¶ 14,
Exs. 8–9; Decl. of R. Eleazar, ¶¶ 7–9, Exs. 5–6.
112 Request for Judicial Notice, No. 2, Ex. 2 (certified file WAC-02-240-51928); Decl. of E. Williams,
¶¶ 14, Ex. 9; Decl. of R. Eleazar ¶ 10, Ex. 6.
113 Decl. of E. Williams, ¶¶ 14, 33–34, Ex. 17; Decl. of R. Eleazar, ¶ 11.
114 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 39, 90, Ex. 17 (admitted); Decl. of R. Eleazar, ¶ 11,
Ex. 7.
115 Decl. of E. Williams, ¶¶ 14, 33–34, Ex. 17; Decl. of R. Eleazar, ¶ 12, Ex. 8.
116 Decl. of L. Garcia, ¶s 2-8, Exs. 1-3, Req. for Admission Nos. 42 and 91, Ex. 18 – admitted; Decl. of
R. Eleazar, ¶ 12, Ex. 8.
117 Decl.of E. Williams, ¶s 14, 33 and 34, Ex. 17; Decl. of R. Eleazar, ¶ 13, Ex. 9.
118 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 45, 92, Ex. 19 (admitted); Decl. of R. Eleazar, ¶ 13,
Ex. 9.
119 Request for Judicial Notice, No. 3, Ex. 3 (certified file WAC-05-197-50163); Decl. of E. Williams,
¶ 15, Exs. 10–11; Decl. of R. Eleazar ¶¶ 14–15, Exs. 10–11.
- 22 -
102. In 2005, Eleazar was employed by MQ as a Software Engineer at the
prevailing wage was $110,000.00 per year.120
103. Eleazar worked for MQ all of 2005, and there was no benching time
during 2005.121
104. Eleazar received a W-2 from MQ for 2005.122
105. Eleazar’s H-1B visa was extended by MQ from June 25, 2006, to June
24, 2007.123
106. In 2006, Eleazar was employed by MQ as a Software Engineer at the
prevailing wage was $110,000.00 per year.124
107. Eleazar worked for MQ from January 1, 2006 to September 18, 2006,
and there was no benching time during 2006.125
108. Eleazar received a W-2 from MQ for 2006.126
109. MQ did not pay Eleazar the wages set forth in the W-2 for year 2006
issued by MQ to Eleazar.127
110. In 2006, according to the W-2 issued by MQ, Eleazar received
$59,583.29 in wages and other payments from MQ.128
111. MQ did not pay Eleazar the prevailing wage rate under the LCA for
ETA Case No. I-05157-1812295 during year 2006.129
120 Request for Judicial Notice, No. 3, Ex. 3 (certified file WAC-05-197-50163); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 51–55, 78, Ex. 5 (admitted); Decl. of E. Williams, ¶ 15, Exs. 10–11; Decl. of
R. Eleazar, ¶¶ 14–15, Exs. 10–11.
121 Decl. of E. Williams, ¶¶ 14, 33–34, Ex. 17; Decl. of R. Eleazar, ¶ 16, Ex. 12.
122 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 48, 93, Ex. 20 (admitted); Decl. of R. Eleazar, ¶ 16,
Ex. 12.
123 Request for Judicial Notice, No. 4, Ex. 4 (certified file WAC-06-217-51886); Decl. of E. Williams,
¶ 16, Ex. 12–13; Decl. of R. Eleazar ¶¶ 17–18, Exs. 13–14.
124 Request for Judicial Notice, No. 4, Ex. 4 (certified file WAC-06-217-51886); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 56–59, 79, Ex. 6 (admitted); Decl. of E. Williams, ¶ 16, Exs. 12–13; Decl. of
R. Eleazar, ¶¶ 17–18, Exs. 13–14.
125 Decl. of E. Williams, ¶¶ 16, 17, 33–34, Ex. 17; Decl. of R. Eleazar, ¶ 19, Ex. 15.
126 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 61, 94, Ex. 21 (admitted); Decl. of R. Eleazar, ¶ 19,
Ex. 15.
127 Decl. of E. Williams, ¶¶ 28, 33, 34, Ex. 17; Decl. of R. Eleazar ¶¶ 20–21, Ex. 15.
128 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 61, 94, Ex. 21 (admitted); Decl. of E. Williams, ¶¶ 28,
33, 34, Ex. 17; Decl. of R. Eleazar, ¶¶ 19–20, Ex. 15.
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112. MQ did not pay Eleazar the prevailing wage rate under the LCA for
ETA Case No. I-06157-2616207 during year 2006.130
113. There was no unproductive time during Eleazar’s employment with
MQ.131
114. Eleazar was not terminated by MQ prior to the expiration of his H-1B
visas.132
115. Eleazar voluntarily resigned from MQ because MQ continually
bounced payroll checks, did not pay medical benefits and owed back
pay for productive work performed during my employment.133
3. Trung Q. Nguyen
116. In April 2001, Trung Q. Nguyen (―Nguyen‖) accepted a position with
MQ as a Senior Middleware Consultant, at the prevailing wage rate
under the LCA at $110,000.00 per year, working out MQ’s business
office in Whitter, California.134
117. Nguyen’s H-1B visa was transferred to MQ, and it was valid from July
18, 2001, to March 27, 2004.135
118. On February 17, 2004, MQ submitted a Petition for Nonimmigrant
Worker signed by Ellen Esquerra Durman to employ Nguyen and
extend Nguyen’s H-1B visa in 2004.136
119. Nguyen’s H-1B visa was extended by MQ from March 28, 2004, to June
22, 2006.137
129 Request for Judicial Notice, No. 3, Ex. 3 (certified file WAC-05-197-50163); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 51, 54, 55, 78, Ex. 5 (admitted); Decl. of E. Williams, ¶¶ 28, 33, 34, Ex. 17;
Decl. of R. Eleazar, ¶ 20, Ex. 15.
130 Request for Judicial Notice, No. 4, Ex. 4 (certified file WAC-06-217-51886); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 56, 59, 60, 79, Ex. 6 (admitted); Decl. of E. Williams, ¶¶ 28, 33, 34, Ex. 17;
Decl. of R. Eleazar, ¶ 20, Ex. 15.
131 Decl. of R. Eleazar, ¶ 22.
132 Decl. of R. Eleazar, ¶ 23.
133 Decl. of E. Williams ¶ 17; Decl. of R. Eleazar ¶ 20.
134 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFA 95, Ex. 22 (admitted); Decl. of E. Williams, ¶ 18, Ex. 14.
135 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of E. Williams,
¶ 18, Ex. 14.
136 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 65, 82, Ex. 9 (admitted); Decl. of E. Williams, ¶ 19, Ex. 15.
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120. MQ did not pay Nguyen the prevailing wage rate under the LCA for
ETA Case No. I-04042-0952005 during year 2004.138
121. Nguyen resigned his position with MQ in July 2004 because MQ
continually missed payroll and owed him back pay for productive work
performed during his employment.139
C. MQ and the Durmans failed to provide notice of the filing of the
LCAs in violation of 20 C.F.R. § 655.734
122. MQ did not post notice of LCA filings for 10 days in two conspicuous
locations at each place where the H-1B nonimmigrant workers were
employed.140
D. MQ and the Durmans required and / or accepted from H-1B
nonimmigrant workers payment or remittance of the additional
petition fee incurred in filing an H-1B petition in violation of 20
C.F.R. § 655.731(c)(10)(ii)
123. In 2004, Nguyen paid MQ a portion of the petition fee for the filing and
processing of his H-1B visa in the amount of $750.00.141
E. MQ and the Durmans failed to maintain documentation as
required by 20 C.F.R. §§ 655.731(b), 655.738(e), 655.739(i), and
655.760(c)
124. MQ did not maintain time records for its H-1B nonimmigrant
workers.142
125. MQ did not maintain payroll records for its H-1B nonimmigrant
workers.143
137 Request for Judicial Notice, No. 5, Ex. 5 (certified file WAC-04-124-50543); Decl. of L. Garcia,
¶¶ 2–8, Exs. 1–3 at RFAs 65, 66, 82, Ex. 9 (admitted); Decl. of E. Williams, ¶ 19, Ex. 15.
138 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFAs 68, 81, Ex. 8 (admitted); Decl. of E. Williams, ¶ 20.
139 Decl. of E. Williams ¶ 17.
140 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 73 (admitted); Decl. of E. Williams, ¶ 39; Decl. of N.
Mells, ¶ 26; Decl. R. Eleazar, ¶ 24.
141 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 72 (admitted); Decl. of E. Williams, ¶¶ 41, 49, 51, Exs.
19, 21 (admitted).
142 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 13 (admitted); Decl. of E. Williams, ¶¶ 22, 23, 29, 33,
35, 43.
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126. MQ did not maintain employment records for its H-1B nonimmigrant
workers.144
127. MQ did not maintain a public access file for its H-1B nonimmigrant
workers.145
128. MQ’s business records were destroyed after MQ failed to pay storage
costs.146
F. MQ and the Durmans failed to cooperate in the investigation in
violation of 20 C.F.R. § 655.800(c)
129. On October 3, 2008, Mells filed complaint against MQ alleging MQ
violated the Immigration and Nationality Act H-1B visa program
(―Act‖ or ―INA‖) by failing to pay him the prevailing wage rate under
the LCAs during his periods of employment with MQ (05/01/2001 to
01/01/2004 and 06/01/2005 to 05/31/2008).147
130. MQ’s violations of the Act occurred within the requisite ―12-month
window‖ from the date the complaint was filed by Mells (10/08/2007
through 10/08/2008).148
131. Wage and Hour’s period of investigation was extended to include
01/01/2001 to 10/08/2008.149
132. On January 13, 2009, the Wage Hour Investigator, Eric Williams
(―WHI‖) held an initial conference was held with MQ’s manager, Ellen
Esquerra Durman.150
133. After the initial conference, MQ and the Durmans failed to cooperate
in Wage and Hour’s investigation of the complaint by failing to; (1)
return numerous phone calls placed by the WHI; (2) produce additional
143 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 14 (admitted); Decl. of E. Williams, ¶¶ 22, 23, 29, 33,
35, 43.
144 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 15 (admitted); Decl. of E. Williams, ¶¶ 22, 23, 29, 33,
35, 43.
145 Decl. of L. Garcia, ¶¶ 2–8, Exs. 1–3 at RFA 16 (admitted); Decl. of E. Williams, ¶¶ 22, 23, 29, 33,
35, 43.
146 Decl. of E. Williams, ¶ 22, 41, 49, 51, Exs. 19, 21 (admitted).
147 Decl. of E. Williams, ¶¶ 6, 10.
148 Decl. of E. Williams, ¶ 10–11, Ex. 7.
149 Decl. of E. Williams, ¶ 12.
150 Decl. of E. Williams, ¶ 22.
- 26 -
documentation that the WHI repeatedly requested after the initial
conference on January 13, 2009; and (3) failing to attend the final
conference held by the WHI on August 24, 2008.151
134. On September 11, 2009, a determination letter was sent to MQ and to
Ellen Esquerra Durman.152
135. On September 21, 2009, Ellen Esquerra Durman responded to the
determination letter and requested a hearing.153
136. On November 3, 2009, a determination letter was sent to Mark
Durman.154
137. On November 17, 2009, Mark Durman responded to the determination
letter and requested a hearing.155
III. Conclusions Of Law
1. This matter arises under the Immigration and Nationality Act H-1B
visa program (the ―Act‖ or ―INA‖).156
2. The Act requires an employer seeking to hire aliens as employees
under the H-1B visa program to submit a Labor Condition Application
(―LCA‖) to the U.S. Department of Labor, Employment and Training
Administration (―ETA‖).157 The employer’s LCA includes enforceable
assurances that:
(A) The employer—
(i) is offering and will offer during the period of
authorized employment to aliens admitted or provided
states [as an H-1B non-immigrant] wages that are at
least:
151 Decl. of E. Williams, ¶¶ 23, 24, 44, 46.
152 Decl. of E. Williams, ¶ 48, Ex. 18.
153 Decl. of E. Williams, ¶ 49, Ex. 19.
154 Decl. of E. Williams, ¶ 50, Ex. 29.
155 Decl. of E. Williams, ¶ 51, Ex. 20.
156 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, and 20 C.F.R. § 655.700, et seq.
157 8 U.S.C. § 1182(n)(1).
- 27 -
(I) the actual wage level paid by the
employer to all other individual with similar
experiences and qualifications for the specific
employment in question, or
(II) the prevailing wage level for the
occupational classification in the area of
employment, whichever is greater, based o the best
information available at the time of filing the
application.
. . .
. . .
(D) The application shall contain specification of
the number of workers sought, the occupational
classification in which the worker will be employed, and
the wage rate and conditions under which they will be
employed.158
3. The Act authorizes the Administrator to investigate violations of the
H-1B provision of the Act. Violations include that an employer:
a. Filed a LCA with ETA that misrepresents a material fact, which
violates 20 C.F.R. § 655.730;
b. Failed to pay all the wages 20 C.F.R. § 655.731 requires
(including failing to pay wages to the nonimmigrant worker
during certain kinds of nonproductive time);
c. Failed to provide notice of the filing of the LCA, which 20 C.F.R.
§ 655.734 requires;
d. Required or accepted from an H-1B nonimmigrant worker
payment of fees the employer incurs when it files an H-1B
petition with INS, which 20 C.F.R. § 731(c)(10)(ii) prohibits;
e. Failed to maintain the documentation that 20 C.F.R.
§§ 655.731(b), 655.738(e), 655.739(i), 655.760(c) requires of the
employer; and
f. Failed to cooperate in the Administrator’s investigation of
potential violations of 20 C.F.R. §§ 655.800(c), or
655.801(a)(1),(2),(5),(11),(15) and (16).
158 8 U.S.C. § 1182(n)(i)(A)(D).
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4. MQ misrepresented the prevailing wage rate on its LCA in ETA Case
No. I-05102-1677461 for the occupation in the area of intended
employment; it thereby violated 20 C.F.R. § 655.730.
5. MQ misrepresented the prevailing wage rate on its LCA in ETA Case
No. I-02197-0174791 for the occupation in the area of intended
employment; it thereby violated 20 C.F.R. § 655.730.
6. MQ misrepresented the prevailing wage rate on its LCA in ETA Case
No. I-02197-0174811 for the occupation in the area of intended
employment; it thereby violated 20 C.F.R. § 655.730.
7. MQ misrepresented the prevailing wage rate on its LCA in ETA Case
No. I-05157-1812295 for the occupation in the area of intended
employment; it thereby violated 20 C.F.R. § 655.730.
8. MQ misrepresented the prevailing wage rate on its LCA in ETA Case
No. I-05157-2616207 for the occupation in the area of intended
employment; it there by violated 20 C.F.R. § 655.730.
9. MQ misrepresented the prevailing wage rate on its LCA in ETA Case
No. I-04042-0952005 for the occupation in the area of intended
employment; it thereby violated 20 C.F.R. § 655.730.
10. The Act authorizes the Administrators to assess civil penalties up to
$1,000.00 for non-willful violations of the Act, such as a failure to pay
wages.159
11. MQ’s violations of 20 C.F.R. § 655.805(a)(1) are numerous and
substantial. The Administrator reasonably assessed Civil Money
Penalties (―CMPs‖) in the amount of $1,800.00 for violations pertaining
to H-1B nonimmigrant workers Mells and Eleazar.160
12. The prevailing wage rate shown on each LCA was the wage that MQ
was required to pay each of the three H-1B nonimmigrant workers. 8
U.S.C. § 1182(n)(1)(A); 20 C.F.R. § 655.731.
13. During the investigation period for H-1B nonimmigrant worker Mells
(January 1, 2002, to June 1, 2008), MQ failed to pay the prevailing
wages for productive work and owes H-1B nonimmigrant worker Mells
$209,497.91 for non-payment of the prevailing wage rate.
159 8 U.S.C.A. § 1182(n)(2)(C)(i)-(ii); 20 C.F.R. § 655.8100(b)(1)-(2)(i)–(iii).
160 20 C.F.R. § 655.810(b)(2)(iii),(c); Administrator v. Kutty, et al., Case Nos. 01-LCA-10 through 01-
LCA-0255 (ALJ Oct. 9, 2002), aff’d. ARB Case No. 03-022 (May 31, 2005).
- 29 -
14. During the investigation period for H-1B nonimmigrant worker
Eleazar (August 5, 2002, to September 18, 2006), MQ failed to pay the
prevailing wages for productive work and owes H-1B nonimmigrant
Eleazar for productive work $18,333.54 for non-payment of the
prevailing wage rate.
15. No back wages are owed to H-1B nonimmigrant worker Nguyen for
failing to pay prevailing wages. MQ nonetheless owes Nguyen $750.00
because MQ received and accepted that amount from Nguyen as
additional petition fees MQ incurred when it filed to his renew his H-
1B visa.
16. MQ failed to provide notice of the filing of the LCAs for 10 days in two
conspicuous locations at each place of employment where its three H-
1B nonimmigrant workers were employed. It thereby violated 20
C.F.R. § 655.734.
17. The payment or remittance of H-1B petition fees by H-1B
nonimmigrant workers is strictly prohibited. The fees must be paid by
the person or entity that seeks to obtain an H-1B visa to admit an
alien to work for it in the United States. MQ required or accepted from
H-1B nonimmigrant worker Nguyen payment or remittance of the
additional petition fee MQ incurred in filing an H-1B petition. It
thereby violated 20 C.F.R. § 655.731(c)(10)(ii).
18. MQ failed to maintain the documents required by 20 C.F.R.
§§ 655.731(b), 655.738(e), 655.739(i) and 655.760(c). The missing
documents include copies of completed LCAs, necessary information
about actual wages, necessary documents that pertain to the
prevailing wage, and complete payroll records.
19. The Administrator reasonably assessed civil monetary penalties in the
amount of $900.00 for MQ’s violations of 20 C.F.R. § 655.805(a)(15).
20. MQ failed to cooperate in the Administrator’s investigation, and it
impeded the investigation. That conduct violates 20 C.F.R.
§ 655.800(c).
21. The Administrator reasonably assessed civil monetary penalties in the
amount of $900.00 for MQ’s violations of 20 C.F.R. § 655.805(a)(16).
22. MQ is the alter ego of the Durmans because the Durmans admitted:
a. that they have been MQ’s only members and have exclusively
managed and controlled MQ since MQ’s organization in June
1999;
- 30 -
b. that since MQ was organized in 1999, they have made no capital
contributions to MQ;
c. that since 2001, MQ was insufficiently capitalized to meet its
obligations to its creditors and has been insolvent;
d. that MQ is no longer conducting business;
e. that MQ failed to withhold federal and state income taxes for
the wages paid to its H-1B non-immigrant workers; and
f. that failing to hold the Durmans individually liable for MQ’s
violations of the Act would be unjust.
23. Each of the Durmans therefore is held individually liable as an
employer with the meaning of the Act for MQ’s violations of the Act
and its implementing regulations.
24. This Decision and Order is entered in the Administrator’s favor.
25. The Respondents shall pay back wages totaling $227,831.45 for their
failure to pay the required wages to the following persons:
Nigel St. John Mells $209,497.91
Renato A. Eleazar $18,333.54
Total: $227,831.45
26. The Respondents shall pay Trung Q. Nguyen $750.00. This reimburses
Nguyen the amount he paid to MQ when MQ petitioned to renewal his
H-1B visa.
27. Respondents shall pay civil money penalties totaling $3,600.00 to the
Wage and Hour Division.
28. Each of the Respondents is individually disqualified from filing new H-
1B petitions for a period of two years from the date of this order.
- 31 -
29. The Respondents are liable for interest on all these amounts at the
rate specified in the Debt Collection Improvement Act of 1996 from the
date of the Administrator’s Determination. That date is September 11,
2009, for MQ and Ellen Esquerra Durman, and November 2, 2009, for
Mark Druman.
So Ordered.
A
William Dorsey
ADMINISTRATIVE LAW JUDGE
San Francisco, California
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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