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.
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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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Immigration Act of 1990

U.S. Department of Labor Office of Administrative Law Judges
36 E. 7th St., Suite 2525
Cincinnati, Ohio 45202
(513) 684-3252
(513) 684-6108 (FAX)
Issue Date: 30 November 2010
Case No. 2010-LCA-8
In the Matter of:
ADMINISTRATOR, WAGE AND HOUR DIVISION,
U.S. DEPARTMENT OF LABOR,
Complainant,
v.
SS IT CONSULTING CORP.,
Respondent.
DECISION AND ORDER ENTERING DEFAULT JUDGMENT
This proceeding arises under the H-1B provisions (20 C.F.R. Part 655) of the
Immigration and Nationality Act of 1952, amended by the Immigration Act of 1990 and the
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (hereinafter
referred to collectively as the “INA”), 8 U.S.C. § 1182(n), and its implementing regulations,
which are located at 29 C.F.R. § 507.700 et seq.
On December 3, 2009, the Administrator notified SS IT Consulting Corp., Respondent,
of his finding that back wages in the total amount of $15,293.73 were due to two H-1B nonimmigrant
employees, $6,240.00 to Karuna Chaudhary, and $9,053.73 to Pradeep Pappu, for
violations of the INA. A civil money penalty in the total amount of $5,500.00 was also assessed
against Respondent.
On February 4, 2010, I issued a Notice of Hearing scheduling this case for hearing on
June 9, 2010, which required the parties to exchange certain information by May 7, 2010. On
May 28, 2010, following Complainant’s filing a Motion to Compel Respondent to respond to
Complainant’s First Requests for Production of Documents and to Complainant’s First Requests
for Admission to Respondent, I continued the hearing to allow for a resolution of the discovery
issues and for Respondent to submit its response to the motion to compel.
Complainant Administrator, on November 15, 2010, by facsimile, served a Motion for an
Order Declaring Respondent in Default for failure to defend and also for an Order deeming the
facts set out in Complainant’s Request for Admissions admitted, due to Respondent’s failure to
timely respond to discovery. Complainant submits the declaration of Beth Phillips-Glacken,
Investigator with the Wage and Hour Division, Columbus, Ohio (Attachment J to motion).
Respondent has not responded to the motion within rule. See 29 C.F.R. §§ 18.6(b), 18.4(d).
- 2 -
In support of the motion, the Administrator sets out Respondent, SS IT Consulting
Corporation’s failure to respond to a number of discovery requests served by Complainant,
including “Administrator’s Request for Production of Documents to Respondent (First Set)” and
“Administrator’s Request for Admissions to Respondent” (attached to Motion as Exhibit B
(cover letter), and Exhibits C and D, respectively). The motion delineates the complete failure of
the Respondent to respond to any of the requested discovery, despite a number of telephone
calls, and electronic mail requests. The requests for admission of the matters relevant to the
issues in the case include requesting the representative of Respondent to admit the following:
1. Admit that Respondent failed to pay the required wages as required in violation of 20
C.F.R. § 655.731;
2. Admit that Respondent required or accepted from an H-1B worker, 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)(1))(ii);
3. Admit that Respondent failed to prove notice of the filing of the LCA as required
under 20 C.F.R. § 655.734;
4. Admit that an H-1B non-immigrant work paid SS IT Consulting Corp. $1,800.00
(prior to employment) to file a visa petition with U.S. Citizenship and Immigration
Services (USCIS);
5. Admit that Respondent failed to provide a Labor Condition Application to one H-1B
non-immigrant; and
6. Admit that Respondent failed to pay the required wage rate for productive work to two
H-1B non-immigration workers.
To date, SS IT Consulting Corp. has failed to respond to all requested discovery and to
comply with the Prehearing Order requiring the parties exchange information. Accordingly, I
ORDER that the facts in Complainant’s Request for Admissions are deemed admitted. I further
enter a default judgment in this case resulting in a final determination of back wages in the total
amount of $15,293.73 being due, and a civil money penalty totaling $5,500.00 assessed against
Respondent, as set out in the Administrator’s December 3, 2009 letter above. I hereby ORDER
this matter DISMISSED.
A
JOSEPH E. KANE
Administrative Law Judge
- 3 -

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

U.S. Department of Labor Office of Administrative Law Judges
2 Executive Campus, Suite 450
Cherry Hill, NJ 08002
(856) 486-3800
(856) 486-3806 (FAX)
Issue Date: 18 November 2010
Case No.: 2010-LCA-00010
In the Matter of
ADMINISTRATOR , WAGE AND HOUR DIVISION,
Prosecuting Party,
v.
PERI SOFTWARE SOLUTIONS INC.,
& SARAVANAN PERIASAMY1, Individually and as President,
Respondents.
DECISION AND ORDER APPROVING CONSENT FINDINGS
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.
The U.S. Department of Labor, Wage and Hour Division issued a Determination Letter
on January 6, 2010 alleging violations of the H-1B provisions of the INA to Peri Software
Solutions Inc., and its president, Saravanan Periasamy (“Respondents”). On January 20, 2010,
Respondents filed a timely request for hearing with respect to the allegations of violations set
forth in the Determination Letter. The matter was assigned to me, and by notice issued January
28, 2010, I scheduled a hearing to commence on April 15, 2010. The parties subsequently
requested continuances to negotiate a settlement, and on October 5, 2010, the parties advised me
that they reached an agreement on the issues in controversy in this matter. I granted the parties
request for time to submit settlement documents by Order issued October 6, 2010.
On November 17, 2010, the parties submitted consent findings in which Respondents as
an entity and individually admitted that they violated the Act by failing to pay sixty-seven (67)
non-immigrants the required prevailing wage. As a result, $635,416.59 is due to those
individuals.
In addition, Respondents admitted that they substantially failed to provide notice of the
filing of Labor Condition Applications at each place of employment where H-1B non-immigrant
workers were expected to be employed in violation of 20 C.F.R. § 655.734 and § 655.805(a)(5).
As a result, civil money penalties in the amount of $121,850.00 were assessed.
1 The caption has been amended to reflect the correct spelling of the corporate officer’s name.
- 2 -
Respondents further admitted that they violated 20 C.F.R. § 655.731(c)(10)(i) and
§655.805(a)(12) by attempting to require an H-1B non-immigrant employee to pay a penalty for
terminating employment. As a result, civil money penalties in the amount of $3,150.00 were
assessed.
To resolve the dispute, Respondents agree as follows:
1. Respondents shall pay back wages in the amount of $635,416.59 plus $3,033.84
in accrued interest, in accordance with the Attachment to the Consent Findings identified as
Schedule A and in compliance with the payment plan set forth in the agreement signed by the
parties, found at the Attachment identified as Schedule B. All payments shall be identified by
“Case No. 1513420” and be made by delivering a lump-sum certified check to:
U.S. Department of Labor
Wage and Hour Division
The Curtis Center, Suite 850 West
170 South Independence Mall West
Philadelphia, PA 19106-3317
Attn: James Kolpack
2. The Deputy Administrator shall deliver the proceeds of each check less any legal
deductions to the non-immigrants identified on Schedule A. Any payment that remains
undistributed for three years because of the parties’ inability to locate an individual or a
representative shall be deposited with the Treasurer of the United States of America.
3. If any installment payment is not made within ten (10) days of the due date set
forth at Schedule B, then the entire balance of outstanding installment payments shall become
due immediately.
4. Respondents agree to pay a total of $125,000.00 in civil money penalties plus
$1,778.82 in accrued interest, in accordance with the installment plan set forth at the Attachment
to the agreement signed by the parties, identified as Schedule C. All payments shall be identified
by “Case No. 1513420(CMP)” and be made by delivering a lump-sum certified check to:
U.S. Department of Labor
Wage and Hour Division
The Curtis Center, Suite 850 West
170 South Independence Mall West
Philadelphia, PA 19106-3317
Attn: Rita Gahagan
5. If any installment payment for civil money penalties is not made within ten (10)
days of the due date set forth at Schedule C, then the entire balance of outstanding installment
payments shall become due immediately.
- 3 -
6. Respondents admit that the violations warrant disqualification from approval of
any H-1B petitions pursuant to 20 C.F.R. § 655.810(d)(1)and further consent to disqualification
from approval of any petitions filed by or filed on behalf of Respondents pursuant to section 204
or section 214(c) of the INA (8 U.S.C. § 1182(n)) for a period of two years. Respondents agree
that the disqualification applies absolutely and conclusively to them in a broad manner.
7. The Administrator shall notify the Attorney General of the United States of the
consent findings and Order pursuant to 20 C.F.R. § 655.855.
8. The disqualification of Respondents shall not affect any H-1B non-immigrant
employees of Respondents currently working under approved petitions.
9. Respondents agree to comply in all respects with the Act and applicable
regulations in connection with any future H-1B application.
10. Respondents shall take no action to retaliate against any individual identified in
the consent findings as entitled to an award of back wages.
11. Respondents shall not attempt to recoup any back wages or civil money penalties
from H-1B non-immigrant workers.
12. Respondents agree that they shall not require any H-1B non-immigrant employee
to pay a penalty for ceasing employment, but Respondents shall not be prohibited from seeking
or receiving bona fide liquidated damages from an H-1B non-immigrant employee who ceases
employment prior to an agreed date where Respondents comply with 20 C.F.R.
§ 655.731(c)(10)(i).
13. In the event that Respondents default on the installment payment provisions of
this agreement, the Deputy Administrator may enforce these Consent Findings and Order by
filing for a Judgment in an action under the Federal Debt Collection Procedures Act (28 U.S.C.
§3001 et seq.), or an action in contract; for debt or to enforce a civil fine, penalty or pecuniary
forfeiture under 28 U.S.C. §2461; or an action under any other applicable statute or remedy.
14. Respondents agree to fully comply with the requirements of 20 C.F.R. Part 655,
Subparts H and I.
15. The entire record upon which any order entered into in conformance with this
agreement shall consist of the Administrator’s determination, Respondent’s request for hearing,
the consent findings and this Order.
16. The parties waive any further procedural steps before the Administrative Law
Judge and waive any right to challenge or contest the validity of the Settlement Agreement and
Consent Findings and Order entered into in accordance with this agreement and 29 C.F.R.
§ 18.9(b)(4).
- 4 -
17. This agreement shall have the same force and effect as an Order issued after a full
hearing pursuant to 20 C.F.R. §655.840 in accordance with 29 C.F.R. §18.9(b)(2).
18. Each party shall bear its own costs, attorney’s fees, and expenses.
ORDER
The undersigned, having reviewed the Settlement Agreement and Consent Findings,
concludes that this settlement is in the best interests of all the parties; and it is therefore
ORDERED that the Settlement Agreement and Consent Findings are hereby APPROVED
pursuant to the provisions of 29 C.F.R. § 507.840.
A
Janice K. Bullard
Administrative Law Judge
Cherry Hill, New Jersey

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This case arises under the H-1B visa program of the Immigration and Nationality Act.

Issue Date: 31 August 2010
CASE NO.: 2010-LCA-17
IN THE MATTER OF
ADMINISTRATOR, WAGE AND HOUR DIVISION,
Prosecuting Party
v.
NB SERVICES, INC.,
Respondent
DECISION AND ORDER
Procedural Background
This case arises under the H-1B visa program of the Immigration and Nationality
Act of 1952 (the Act)1 and its implementing regulations.2 On 15 Apr 07, an immigrant
worker filed a complaint with Respondent, alleging Respondent was not paying her the
prevailing wage required by law. On 16 Mar 10, the Administrator issued its
determination that Respondent had committed two violations of the Act by failing to pay
wages for the period 21 Mar 03 through 12 Jan 073 and failing to maintain required
records, including documentation of union and employee notification.4 Respondent was
directed to pay $23,327.56 in back wages to one specific nonimmigrant H-1B worker and
comply with record retention regulations in the future. No civil penalties were levied
against the Respondent. Respondent filed a timely appeal and the case was referred to
the Office of Administrative Law Judges.
On 13 Apr 10, the parties participated in a teleconference and requested additional
time to review the matter and possibly reach an agreement on outstanding issues. On 27
Apr 10, the parties participated in another teleconference and reported that while there
were no significant factual disputes, they still had differences over issues of law and the
case would require adjudication. However, they agreed to waive their rights to present
evidence and make arguments in person and instead requested that they be allowed to
1 8 U.S.C.§ 1101-1537(2010).
2
20 CFR Part 655, Subparts H and I.
3 As required by 20 CFR § 655.731.
4 As required by 20 CFR § 655.760.
- 2 -
submit documents and file written briefs for a hearing on the record. The parties then
filed a comprehensive stipulation of fact accompanied by supporting exhibits.
Factual Background5
The complaining employee worked for Employer’s predecessor business entity in
Ecuador from 1998 until April 2002, when she moved to the Houston, Texas office as a
nonimmigrant worker. Respondent Employer filed the appropriate documents and the
employee was approved through March 2005 with a required annual wage of $35,630.00.
She was subsequently approved for a second period through March 2008, with the same
required wage rate. Respondent provided the following compensation during her
employment:
Year Wages
reported
Cash
Advances
Bonuses Legal
Fees
Rent Gym
Fees
Cell
Phone
Car &
Ins
Payments
Health
Ins
Misc
2002 21,926.24 1280 500 1170 4227.66 853.91
2003 27,851.95 538.22 1000 6206.58 337.89 1421.40
2004 28,882.84 2600 1000 2263.70 454.92 722.54
2005 30,792.00 5102.60 1300 5885 3420 816.68 2462.10 1926 600
2006 33,072.00 684.24 951 361 2762.52 1764 600
She voluntarily terminated her employment in early January 2007. In February
2007, Respondent filed suit in Texas court to recover the outstanding amounts it had
loaned her directly and the amounts she had failed to pay on the car it had sold to her on a
time payment basis. In April 2007, she filed a complaint alleging Respondent had failed
to pay her the requisite wages. In August 2008, she contacted Respondent and suggested
resolving the matters without involving the court or Department of Labor. In November
2008, she agreed to no longer pursue her complaint with the Department of Labor in
exchange for Respondent dismissing its state court claims with prejudice.
Issues
The Administrator submits that Respondent failed to pay the required salary.
Respondent concedes that direct payments may have fallen short of the required figure,
but notes that it also compensated the immigrant worker by paying her rent, legal fees,
bonuses, gym membership fees, car payments, insurance, cell phone expenses, bonuses,
and miscellaneous expenses. Respondent argues that when this other compensation is
included, it met the threshold. The Administrator answers that those additional payments
do not qualify as wages under the Act or regulations. Respondent also seeks a ruling that
Charles L. Newcomb, its former director, is not personally liable. The Administrator
seeks a finding that Respondent was not in compliance with record maintenance
requirements.
5 I hereby incorporate by reference the stipulation of fact submitted by the parties as my finding of fact in the case.
- 3 -
Law
The Act permits employers to hire nonimmigrant aliens under various specifically
defined circumstances.6 However, the Act also requires the employer to file
… with the Secretary of Labor an application stating the following:
(A) The employer–
(i) is offering and will offer during the period of authorized employment to aliens
admitted or provided status as an H-1B nonimmigrant wages that are at least–
(I) the actual wage level paid by the employer to all other individuals with similar
experience 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 on the best information available as of
the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that will not
adversely affect the working conditions of workers similarly employed.7
The implementing regulations of the Act define wages for the purposes of
satisfying the required wage obligation.8 “The required wage must be paid to the
employee, cash in hand, free and clear, when due, except that deductions [cross-reference
omitted] may reduce the cash wage below the level of the required wage.”9
The regulations then limit qualifying cash wages to only those payments shown in
the employer’s payroll records as earnings and (except for authorized deductions)
disbursed to the employee and properly reported and subjected to any required
withholding under the Internal Revenue Code, Federal Insurance Contributions Act, and
all other appropriate federal, state, and local laws and regulations. Future bonuses and
similar compensation may also qualify, but only if they are not conditional or contingent
on some event and once paid meet the same reporting and withholding requirements.10
Authorized deductions are limited to those (1) required by law (e.g., taxes); (2)
pursuant to a collective bargaining agreement or reasonable and customary in the
occupation and/or area of employment (e.g., premiums for health insurance policy
covering all employees); or (3) made in accordance with a written voluntary authorization
by the employee for a matter principally for the benefit of the employee and not a
recoupment of the employer’s business expense.11
6 8 U.S.C. §1101(a)(15)(H)(i)(b)(2010); 20 CFR 655.7000(2010).
7 8 U.S.C. §1182(n)(1)(A)(2010).
8 20 C.F.R. § 655.731(c) (2010).
9 20 C.F.R. § 655.731(c)(1) (2010).
10 20 C.F.R. § 655.731(c)(2) (2010).
11 20 C.F.R. § 655.731(c)(9) (2010).
- 4 -
Health insurance provided as compensation for services is not treated as wages,
but as a benefit which must be offered to the nonimmigrant on the same basis as the
employer offers to U.S. workers.12
The regulations define employer as a person, firm, corporation, contractor, or
other association or organization in the United States that has an employment relationship
with the nonimmigrant and files a petition with the United States Citizenship and
Immigration Services (USCIS) of the Department of Homeland Security (DHS) on behalf
of the nonimmigrant. 13
The regulations also require the employer to retain and make available for
inspection certain records, including those that document union and employee
notification. 14
Discussion
The regulations are clear that in order to qualify as wages, compensation must be
reported and subjected to withholding by the I.R.S. Respondent does not argue that it did
so, or that it qualified for any exception, instead simply noting that the “Department of
Labor does not have jurisdiction over whether a payment constitutes compensation.”
Moreover, any amounts that are deducted and not actually paid to the employee must be
in accordance with a written authorization. There is no indication in the record of any
such authorization. Finally, it appears that in some instances, Respondent attempts to
claim as wages amounts that were actually loans. The fact that the loans were later
forgiven does not make them wages in the year they were originally made.
Consequently, I find that the Administrator’s assessment is correct and that
Respondent owes back wages in the amount of $23,327.56, as set forth in EX-19. I also
find that Respondent failed to maintain required records, including those that document
union and employee notification, but is now in compliance.
Respondent is an incorporated legal entity. The LCA was signed by Charles L.
Newcomb in his capacity as an officer of the corporation rather than in his personal
capacity. The aggrieved employee filed her complaint against the corporation and the
enforcement action names the corporation. Accordingly, I find that Charles L. Newcomb
is neither a named party nor liable in his personal capacity as the employer in this case.
12 20 C.F.R. § 655.731(c)(3) (2010).
13 20 C.F.R. § 655.715 (2010).
14 20 C.F.R. § 655.760(a) (2010).
- 5 -
Order
Respondent shall pay $23,327.56 in back wages to the nonimmigrant worker, in
accordance with the provisions of the order at EX-20. Respondent shall file with the
Administrator, with copy to the worker, the appropriate documentation evidencing the
computation of amounts payable after authorized deductions, as well as appropriate
documentation evidencing the tender of said payment of required wages and interest as
directed herein. All monetary computations made pursuant to this Order are subject to
verification by the Administrator.
So ORDERED.
A
PATRICK M. ROSENOW
Administrative Law Judge
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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The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INA’s H-1B provisions to the ARB.

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

ARB CASE NO. 11-017
ALJ CASE NO. 2010-LCA-018
DATE: April 12, 2011

In the Matter of:

EDWARD GLADSTON ROSARIO
PRAGASAM,

PROSECUTING PARTY,

v.

WELLNESS HOME HEALTH CARE, INC.,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Paul M. Igasaki, Chief Administrative Appeals Judge; Luis A. Corchado, Administrative Appeals Judge

FINAL DECISION AND ORDER DENYING INTERLOCUTORY APPEAL
On December 1, 2010, the Administrative Review Board (ARB) received a motion from Edward Pragasam, the Prosecuting Party, requesting an enlargement of time to file a petition requesting review of a Department of Labor Administrative Law Judge’s decision under the Immigration and Nationality Act, as amended.1 The motion stated that the Administrative Law Judge (ALJ) had issued the decision on November 1, 2010, and

——————————————————————————–
[Page 2]
that Pragasam had filed a motion with him requesting an enlargement of time to file a motion for reconsideration, but the Judge had not yet ruled on the motion. Upon review of the Judge’s docket, we noted that the Judge issued two orders on November 1, 2010, one disposing of a number of procedural and discovery dispute issues2 and the other relating to scheduling the hearing and pre-hearing procedures. 3 Neither of the Orders is a final decision and order disposing of Pragasam’s complaint.

Accordingly, on December 15, 2010, we issued an order that provided:

[I]f the Prosecuting Party intends to file an interlocutory appeal, we will GRANT the motion for enlargement of time to file it. If the Prosecuting Party wishes to proceed under the certification procedure of 28 U.S.C.A. § 1292(b), he will have to request the Judge to certify the issues he wants to appeal as that section provides and then request interlocutory review within ten (10) days of the Judge’s ruling on the certification request. If the Prosecuting Party wishes to proceed under the collateral order procedure for obtaining interlocutory appeal, he must file his petition for interlocutory review within ten (10) days of the date the Judge issues his order in response to the Prosecuting Party’s motion for reconsideration. Otherwise, the Prosecuting Party may defer his appeal until the Judge issues his final decision and order disposing of the Prosecuting Party’s complaint. If the Prosecuting Party decides . . . . not to proceed with an interlocutory appeal, he must so inform the Board, as soon as possible, so that the Board may close the current docket number.

Because the Board had received no further communication from Pragasam, by February 24, 2011, regarding his intention to file an interlocutory appeal, the Board issued an order requiring him to show cause, no later than March 9, 2011, why the Board should not dismiss his interlocutory appeal.

——————————————————————————–
[Page 3]
On February 28, 2011, the ALJ issued an Order Denying Motion for Reconsideration and Other Miscellaneous Orders. In this order, the ALJ explained clearly and fully why he refused to reconsider his November 1st Order disposing of a number of procedural and discovery dispute motions Pragasam had filed. In particular, he denied Pragasam’s request for sanctions against the Respondent and its counsel for false admission responses noting, “[i]n the Order dated November 1, 2010, I carefully reviewed the Prosecuting Party’s arguments and the Respondent’s admissions responses and found there was no indication that the Respondent provided false or evasive answers to the requested admissions.”4

The ALJ also denied Pragasam’s request for a default judgment for failing to file an answer to the Prosecuting Party’s “Amended H1B Complaint.” The ALJ found that the Prosecuting Party had not in fact filed an “amended” complaint, but instead a further explanation of the original complaint.5

The ALJ reiterated his denial of Pragasam’s motion to Join the District Director of the Wage and Hour Division and a Wage and Hour investigator as parties to this case because as he had previously explained, neither the District Director, nor the investigation are necessary to accord relief to either the Prosecuting Party or the Respondent in the de novo proceeding before the ALJ.6

While the ALJ noted that he did not understand Pragasam’s objection to rescheduling the hearing, he stated that obviously it was impossible to move the hearing date back to November 16, 2010, and that he had rescheduled the hearing date because it was clear to him that the case was not yet ready for hearing as Pragasam had not completed his discovery.

Ultimately, the ALJ denied Pragasam’s request to postpone ruling on his motion for reconsideration until he is able to have audio CDs transcribed from Tamil into English and to have oral argument on the motion because Pragasam will have every opportunity to present any relevant evidence or argument at the hearing.

On March 9, 2011, Pragasam filed a Petition requesting the Board to review the ALJ’s February 28th Order Denying Motion for Reconsideration and Other Miscellaneous Orders. In particular, Pragasam requested the Board to grant the petition for review and issue a briefing schedule with oral hearing, grant 30 days to file a brief, fax all communications to the prosecuting party as well as serving by U.S. Mail, and fax to him a copy of the ARB’s order with the case number.

On March 14, 2011, the ALJ issued an Order Denying Request to Certify Issues

——————————————————————————–
[Page 4]
for Interlocutory Appeal. In this Order the ALJ stated that Pragasam had misinterpreted the ARB’s December 15th Order as requiring the ALJ to certify the case for interlocutory appeal. Further the ALJ concluded:

My February 28, 2011, Order was not a final decision and order disposing of the Prosecuting Party’s complaint. The Order disposed of a number of procedural and discovery dispute issues. None of these issues involved “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §1292(b).[7 ]

On March 22, 2011, Pragasam filed with the Board a Motion to Reopen the Closed Interlocutory Appeal. In this Motion, the Prosecuting Party averred that he had not received the Board’s Order to Show Cause until the ALJ forwarded him a copy on March 14, 2011.8

Discussion
The Board has carefully reviewed the ALJ’s November 1, 2010, February 28, 2011, and March 14, 2011 orders in this case. We deny Pragasam’s request to file a brief in support of his petition for interlocutory review with the Board, because on their face the procedural and discovery dispute issues presented in the Orders that Pragasam has attempted to appeal are not appropriate for interlocutory review, and therefore briefing would not aid the Board in its resolution of Pragasam’s request for interlocutory review.

As the Board explained in its December 15, 2010 Order, “[a]s a general matter the Board only considers appeals in H1-B cases after the ALJ issues a final decision and order.9 In limited circumstances, the Board will consider an interlocutory appeal of an

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[Page 5]
ALJ’s non-final decision. These circumstances include when a Judge certifies an interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b)(Thomson/West 2006)10 or where the party seeks review of a collateral order. But interlocutory appeals are generally disfavored and these exceptions are strictly construed because there is a strong policy against piecemeal appeals.”11

In this case the ALJ found that the procedural and discovery dispute issues in this case do not involve “‘a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.’”12 Accordingly, the ALJ denied Pragasam’s request to certify the case for interlocutory appeal. Because the ALJ has not certified the procedural and discovery dispute issues for interlocutory appeal, and given the nature of the disputed orders, finding no reason to disagree with the ALJ’s certification denial, we decline to accept this appeal for review as provided in 28 U.S.C.A. § 1292(b).13

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[Page 6]
Furthermore, there is no viable argument that the procedural and discovery dispute issues presented here are subject to the collateral order exception permitting review of orders that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.”14

In general, the Board is very reluctant to interfere with an ALJ’s control over procedural and discovery issues.15 The ARB can most certainly review the procedural issues Pragasam has raised regarding default judgment, joinder of parties, and audio CD transcription upon appeal of the ALJ’s final decision in this case. Discovery orders are also readily subject to review upon appeal.16 In Lewis v. Bloomsburg Mills, Inc., the Fourth Circuit cited with approval Judge Clark’s dissent in Peter Pan Fabrics, Inc. v. Dixon Textile Corp.:17

A district judge’s orders advancing a case to trial ought not to be critically examined and re-examined by the cumbersome method of appeal before he has approached the stage of adjudication. . . . I believe this is an intolerable burden for us, an improper and uncertain interference with trial court discretion, and a confusing invitation to indiscriminate appeals in the future – all contrary to settled federal law against piecemeal appeals.[18 ]

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[Page 7]
If Pragasam believes that the ALJ’s procedural and discovery orders constitute an abuse of discretion that prejudice his case, he may so argue upon appeal, if and at such time as, the ALJ issues a decision and order denying his complaint. Accordingly, because the ALJ has refused to certify the case for interlocutory appeal, and the procedural and discovery issues of which Pragasam desires review may indisputably be effectively reviewed upon appeal, we DENY Pragasam’s motion to file an interlocutory appeal in this case.

SO ORDERED.

PAUL M. IGASAKI
Chief Administrative Appeals Judge

LUIS A. CORCHADO
Administrative Appeals Judge

[ENDNOTES]
1 8 U.S.C.A §§ 1101(a)(15)(H)(i)(b), 1182(n), 1184(c) (West 1999 & Thomson Reuters Supp. 2010) (INA). See 20 C.F.R. § 655.845 (2010). The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INA’s H-1B provisions to the ARB. See Secretary’s Order No. 1-2010, 75 Fed. Reg. 3,924-25 (Jan. 15, 2010).

2 This order was entitled, “Order to Comply with Filing Procedures and Order Denying Request to Transcribe Evidence and Order Denying Request for Joinder of Parties and Order to Follow Subpoena Procedures and Order Denying Request to Compel Respondent to Amend Admissions Responses and Order Allowing Leave to File and Amend Complaint and Order Granting Change of Venue and Order of Continuance and Notice Rescheduling Hearing.”

3 This second order was entitled, “Order Rescheduling Hearing and a New Prehearing Order.”

4 Order Denying Motion for Reconsideration and Other Miscellaneous Orders at 4.

5 Id. at 4-5.

6 Id. at 5.

7 Order Denying Request to Certify Issues for Interlocutory Appeal at 4.

8 The United States Postal Service (USPS) Tracking report confirmed that the USPS carrier left a notice on March 4, 2011, when he or she initially unsuccessfully attempted to deliver the Board’s Order to the Prosecuting Party, and left a second notice on March 17, 2011. The USPS designated the Order as unclaimed on March 21, 2011, and returned it to Washington, D.C. on March 30, 2011. Pragasam offers no explanation for why he failed to claim the Order after the USPS left two notices documenting its attempts to deliver the Order.

9 20 C.F.R. § 655.845. Accord OFCCP v. Bank of America, ARB No. 10-048, ALJ No. 1997-OFC-016 (ARB Apr. 29, 2010).

10 28 U.S.C.A. § 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

11 Order at 2.

12 Order Denying Request to Certify Issues for Interlocutory Appeal at 4 quoting 28 U.S.C.A. § 1292(b).

13 Johnson v. U.S. Bancorp/U.S. Banknational Ass’n., ARB No. 11-018, ALJ No. 2008-SOX-037, slip op. at 4 (ARB Mar. 14, 2011); Powers v. Pinnacle Airlines, Inc., ARB No. 05-138, ALJ No. 2005-SOX-065, slip op. at 6 (ARB Oct. 31, 2005), quoting Plumley v. Federal Bureau of Prisons, 1986-CAA-006, slip op. at 3 (Sec’y Apr. 29, 1987) (citation omitted). Some courts have held that district court certification is a jurisdictional prerequisite to interlocutory review under section 1292(b). In In re Ford Motor Co., 344 F.3d 648, 654 (7th Cir. 2002), the court explained:

The whole point of § 1292(b) is to create a dual gatekeeper system for interlocutory appeals: Both the district court and the court of appeals must agree that the case is a proper candidate for immediate review before the normal rule requiring a final judgment will be overridden.

14 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

15 Accord Saporito v. G.E. Med. Sys. Adecco Tech., ARB No. 04, 007, ALJ Nos. 2003-CAA-001, -002, slip op. at 4 (ARB Nov. 25, 2003); Hasan v. Commonwealth Edison Co., ARB No. 99-097, ALJ No. 1999-ERA-017, slip op. at 2 (ARB Sept. 16, 1999).

16 McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 353 (D.C. Cir. 1995); Reise v. Board of Regents, 957 F.2d 293, 295 (7th Cir. 1992).

17 280 F.2d 800, 805-806 (2d Cir.1966).

18 608 F.2d 971, 973 (4th Cir. 1979). The Supreme Court also quoted Judge Clark’s dissent with approval in Switzerland Cheese Ass’n v. E. Horne’s Market, 385 U.S. 23, 25 n.3 (1966). In accordance with Judge Clark’s dissent, the Second Circuit, en banc¸ subsequently reversed Peter Pan Fabrics, Inc. Chappell & Co. v. Frankel, 367 F.2d 197, 200 (1996).

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  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.
  • services sprite The Secretary of Labor has delegated her authority to issue final agency decisions in cases arising under the INAs H 1B provisions to the ARB.