Law Offices of Janet J. Greathouse
Immigration and Nationality Law
DOL Affirms Administrative Determination of Back Wages

An administrative law judge recently found that
employment began upon approval of (rather than the filing of) an H1B petition.  As a result, a California employer was held liable for back wages.

Nalinabai Chelladurai, who was working in Los Angeles with an
H1B visa, was laid off from her job in December 2000.  Infinite Solutions, Inc. agreed to file an H1B petition on behalf of Ms. Chelladurai, and she moved to Sacramento.  Infinite Solutions submitted a Labor Condition Application (LCA) stating that Ms. Chelladurai would be hired as a senior programmer analyst with the expected annual salary of $65,000.  The LCA was approved effective April 9, 2001.

After relocating, Ms. Chelladurai engaged in activities aimed at finding work, including sending e-mails, interviewing and taking a computer course.  On May 21, 2001, Infinite Solutions "terminated" her employment.  Ms. Chelladurai filed a complaint with the U.S. Department of Labor, claiming that she was not paid wages, as required by the approved LCA.

A wage violation was subsequently found and Infinite Solutions was required to pay Ms. Chelladurai back wages of $2,273.27.  Ms. Chelladurai disputed this amount, arguing that she should have been paid wages from the time that Infinite Solutions filed its
H1B petition (January 3, 2001) rather than when the petition was approved (April 16, 2001).  According to Ms. Chelladurai, the H1B portability provision of the American Competitiveness in the Twenty First Century Act (ACWIA), which allows individuals, in certain circumstances, to accept new employment upon the filing of an H1B petition by a new employer, applied to her case.

The administrative law judge rejected this argument, concluding that there was no "common intent to create, an
employment relationship at any point at least prior to the approval of the H1B application."  The judge found that there was no work available for her at any time, and there was no agreement on her salary as Ms. Chelladurai admitted that she left her salary open for negotiation.  Finally, the judge relied on Infinite Solutions letter submitted with the H1B petitions, which stated that employment will begin "only after approval of this petition and the issuance of an H1B visa."

Concluding that
H1B employment did not begin until the approval of the petition on April 16, 2001, the judge ruled that Infinite Solutions violated regulations requiring payment of wages to an H1B employee in nonproductive status, and ordered that Infinite Solutions be held liable for back wages from the date of approval of the H1B petition until the termination of employment on May 21, 2001.
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