Varess v. Persian Broadcast Service Global, Inc. (agency decision, September 26, 2019)

Plain-English summary

Persian Broadcast Service Global filed two labor condition applications promising television producer Majid Varess annual wages of $45,000 and $60,000, but paid him irregular amounts. The Board held that the employer remained bound by those wage promises after Varess entered employment. His work outside the United States, alleged misconduct, and alleged failure to follow the applications did not establish either recognized exception: a bona fide termination or voluntary nonproductive status. The Board also found that Varess had provided computations of his claimed damages. It reversed the ALJ and remanded for findings on whether the complaint was timely and how much was owed.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1101(a)(15)(E)(iii) and 1182(n)(2)(C)(vii)(I); 20 C.F.R. §§ 655.731(c), 655.806(a)(5), and 655.845; 29 C.F.R. §§ 18.80(c)(3) and 18.50(c)(1)(i)(C)
• Outcome: The denial of relief was reversed and the case remanded for timeliness and damages findings.
• Key point: An E-3 employer's wage obligation continues unless it effects a bona fide termination or the worker enters voluntary nonproductive status.

Full text (DOL official public release)

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

  In the Matter of

  MAJID VARESS,                                          ARB CASE NO. 2018-0023

                  PROSECUTING PARTY,                     ALJ CASE NO. 2016-LCA-00019

         v.                                              DATE: September 26, 2019

  PERSIAN BROADCAST SERVICE
  GLOBAL, INC.,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Jonathan D. Wasden, Esq.; Wasden Immigration Law; Reston,
        Virginia

  For the Respondent:
        Jonathan R. Sturman, Esq.; Law Offices of David M. Sturman;
        Encino, California

  BEFORE: James A. Haynes, Thomas H. Burrell, and Heather C. Leslie,
  Administrative Appeals Judges


                              DECISION AND ORDER
                           REVERSING AND REMANDING

        PER CURIAM. This case arises under the E-3 visa program1 provisions of the
  Immigration and Nationality Act, as amended (INA), 8 U.S.C. § 1101(a)(15)(E)(iii)
  (2014), and implementing regulations at 20 C.F.R. Part 655, subparts H and I
  (2018). The Complainant Majid Varess urges the Administrative Review Board

  1      The ALJ erroneously stated that the case arises under the H-1B program.

  (Board) to reverse the Amended Decision and Order Denying Relief (December 14,
  2017) of the Administrative Law Judge (ALJ). The ALJ found in favor of the
  Respondent Persian Broadcast Service Global, Inc. Complainant appealed to the
  Board. We reverse and remand.



                                     BACKGROUND

        In September 2011, Respondent filed a labor certification application (LCA)
  with the U.S. Department of Labor (DOL) for Complainant. D. & O. at 2. DOL
  approved the LCA for a validity period of September 12, 2011, to September 12,
  2013, at an annual wage rate of $45,000.00. D. & O. at 2. Amir Shadjareh,
  Respondent’s president, signed the LCA. D. & O. at 6. On November 23, 2011,
  Complainant entered the U.S. and began working for Respondent as a television
  producer and reporter. Id. at 2. During periods of his employment under the LCA,
  Complainant worked outside of the United States producing and hosting sports
  programs for Respondent. Id.

        In August 2013, Respondent filed a second LCA with DOL for Complainant.
  Id. DOL approved the second LCA for a validity period of September 12, 2013, to
  September 12, 2015, at an annual wage rate of $60,000.00. Id. Respondent’s
  president, Shadjareh, also signed the second LCA. Id. at 6. On September 7, 2013,
  Shadjareh signed a letter stating that he was confirming that Complainant was
  working for Respondent as a sports producer until September 2015 with a monthly
  salary of $5,000.00. CX 4.

         On November 13, 2013, Shadjareh sent a letter to the U.S. Consulate in
  Sydney, Australia, stating that Respondent wished to continue to engage
  Complainant’s services as a TV producer and reporter at a salary of $60,000 per
  year. CX 5. In the letter he described the duties of the position, which included
  reporting “live from relevant sporting arenas and other external locations.” Id.
  Shadjareh requested approval of Complainant’s continued E-3 visa status. Id.

         During Complainant’s employment with Respondent he worked in several
  different locations around the world and Respondent never paid him a regular
  salary. D. & O. at 7-9. In 2013 and 2014, Respondent made irregular payments to
  Complainant by check in amounts varying between $300.00 and $2,300.00 until at

  least July 11, 2014. RX 6. On July 11, 2014, Shadjareh texted Complainant that he
  could not pay Complainant’s wages because he did not have the money. The text
  continued that Respondent might have been able to pay Complainant if he had
  broadcast the news show daily and they could have attracted sponsors. CX 9. At no
  point before or after July 14, 2014, did Respondent notify DOL that it had
  terminated Complainant’s employment. D. & O. at 3.

         Complainant filed a complaint against Respondent with the Administrator,
  Wage and Hour Division for unpaid wages on February 5, 2015. Id. at 3; see RX 2.
  The Administrator determined that the Respondent had not committed any
  violations. The Complainant filed objections with the Office of Administrative Law
  Judges requesting a hearing. The ALJ found for Respondent. Complainant appealed
  the ALJ’s decision to the Board.



                      JURISDICTION AND STANDARD OF REVIEW

         The Board has jurisdiction to review the ALJ’s Decision and Order. 20 C.F.R.
  § 655.845; see Secretary’s Order 01-2019 (Delegation of Authority and Assignment
  of Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3,
  2019).



                                     DISCUSSION

         On appeal, Complainant argues that he is entitled to back pay for the
  difference between the wages Respondent attested it would pay him on the two
  LCAs and the amounts it actually paid him. He argues that the ALJ failed to follow
  the plain language of the statute and regulations that require H-1B and E-3
  employers to pay wages under the terms of LCAs unless there has been a bona fide
  termination or the employee has placed himself in a voluntary nonproductive
  status. We agree. We reverse and remand the ALJ’s decision because Respondent
  failed to pay Complainant the required wage under his two LCA periods and
  neither of the two possible exceptions applies.



  1. Statutory and regulatory framework

         The INA defines various classes of aliens who, under different visa
  classifications, may enter the United States for prescribed periods of time. 8 U.S.C.
  § 1101(a)(15). The E-3 visa allows employers to temporarily hire Australian workers
  in specialty occupations. 8 U.S.C. § 1101(a)(15)(E)(iii). The E-3 visa regulations
  require employers to file an LCA and guarantee specified prevailing wages and
  working conditions, among other things.2

         An employer must pay an E-3 employee the prevailing wage listed on the
  employee’s LCA starting on the date that the employee “‘enters into employment’
  with the employer” or, if the employee has not “enter[ed] into employment” with the
  employer, thirty days after the Complainant has obtained permission to enter the
  U.S. and work for the employer or sixty days after the employee becomes eligible to
  work for the employer. 20 C.F.R. § 655.731(c)(6). The employee “‘enter[s] into
  employment,’ when he/she first makes him/herself available for work or otherwise
  comes under the control of the employer . . . .” 20 C.F.R. § 655.731(c)(6)(i). An
  employer is obligated to pay the wages specified in the employee’s LCA even if it
  places the employee in a nonproductive status or “benches” the employee. 20 C.F.R.
  § 655.731(c)(7)(i). If an employer places an E-3 employee in nonproductive status
  “due to a decision by the employer” and does not pay the employee full-time wages
  in accordance with the LCA, then the employer commits a violation of the Act. 8
  U.S.C. § 1182(n)(2)(C)(vii)(I).

         In signing and filing an LCA, an employer attests that for the entire “period
  of authorized employment,” it will pay the required wage to the E-3 nonimmigrant.
  20 C.F.R. §§ 655.700(d)(4); 655.730(c)(2). But the employer need not pay wages to
  the employee if there has been a bona fide termination of the employment
  relationship. To effect a bona fide termination, the employer must notify the
  employee that his employment has been terminated and also notify the Department
  of Homeland Security (DHS) so that it may revoke approval of the visa.3 An


  2     20 C.F.R. § 655.700(c)(3); 20 C.F.R. § 655.700(d)(4). Several subsections in Subparts
  H and I of Part 655 apply only to H-1B nonimmigrant workers and not to E-3
  nonimmigrant workers.
  3     8 U.S.C. § 1182(n)(1); 20 C.F.R. §655.731(a). Under certain circumstances, the
  employer must also provide the employee with payment for transportation home. 8 C.F.R. §

  employer is also not required to pay wages if a nonimmigrant worker is in
  nonproductive status due to his or her “voluntary request and convenience.” 20
  C.F.R. § 655.731(c)(7)(ii).

  2. Respondent owed Complainant wages as specified in the LCAs

         In this case, Respondent failed to pay Complainant the required wage under
  the first LCA which was $45,000 per year. Respondent also failed to pay
  Complainant the required wage of $60,000.00 for the second LCA period. Because
  Respondent’s president signed and filed both LCAs with the DOL, it was legally
  obligated to pay the Complainant the specified wages when Complainant entered
  into employment until the LCA period expired unless an exception to that obligation
  applied.

         A. Complainant “entered into employment”

        On November 23, 2011, Complainant entered the U.S. and began working for
  Respondent under the first LCA as a television producer and reporter. D. & O. at 2.
  On September 3, 2013, Complainant entered the U.S. and began or continued
  working for Respondent under the second LCA on or about September 12, 2013. D.
  & O. at 3; CX-7.

         B. Respondent did not effect a bona fide termination

         As noted earlier, the employer may end any obligation to pay wages under
  the LCA is through a bona fide termination. The Act and its regulations impose the
  duty to terminate the employment relationship on the employer, not the
  nonimmigrant employee. 20 C.F.R. § 655.731(c)(7)(ii); Adm’r, Wage & Hour Div.,
  U.S. Dep’t of Labor v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-029,
  slip op. at 8 (ARB Jan. 7, 2010). Respondent concedes that it never effected a bona
  fide termination of Complainant’s employment. Resp. Br. at 19.

         C. Complainant did not enter into voluntary nonproductive status

         An employer is also freed from the LCA’s wage obligation when a
  nonimmigrant worker is in nonproductive status due to his or her “voluntary
  request and convenience.” 20 C.F.R. § 655.731(c)(7)(ii).


  214.2(h)(4)(iii)(E); 20 C.F.R. § 655.731(c)(7)(ii); Gupta v. Jain Software Consulting,
  Inc., ARB No. 05-008, ALJ No. 2004-LCA-039, slip op. at 5-6 (ARB Mar. 30, 2007).

         As stated previously, the ALJ found that during periods in 2012 and 2013,
  Complainant produced and hosted sports programs for Respondent outside the
  United States. D. & O. at 2. Respondent urges us to find that when Complainant
  voluntarily left the United States on November 16, 2013, and never returned, he
  quit his employment or that he voluntarily placed himself in a nonproductive
  status.

         It is undisputed that during Complainant’s employment with Respondent, he
  performed work producing television programs outside of the United States.
  Shadjareh testified that when Complainant was outside of the U.S., he produced his
  television program by “scribe or internet.” Tr. 165. In a letter, Shadjareh described
  Complainant’s duties to the U.S. Consulate as including reporting “live from
  relevant sporting arenas and other external locations.” CX 5. Further, Respondent’s
  records show that it paid him for work throughout 2013 and up to at least July
  2014, with many or most of the payments occurring during periods when
  Complainant was outside of the United States. Thus, the mere fact that
  Complainant was outside of the United States does not by itself indicate that he
  was not performing work for Respondent. Indeed, Respondent does not appear to
  allege that Complainant was not performing work as an employee. Rather,
  Respondent appears to rely solely on the fact that Complainant left the U.S.

        As stated previously, when a nonimmigrant worker stops working for an
  employer, it is the employer’s responsibility to effect a bona fide termination
  including notice to DHS and this Respondent failed to provide that notice.
  Respondent’s allegation that Complainant “quit” does not negate Respondent’s
  responsibility to pay wages under the LCAs in this case. Respondent has not proven
  that Complainant put himself in nonproductive status simply because he was out of
  the country.

         D. Complainant’s misrepresentations and other misconduct do not relieve
            Respondent from LCA wage obligations

        Under the implementing regulations at § 655.731, bona fide termination and
  voluntary nonproductive status found in 731(c)(7)(ii) are the only two alternatives to
  the employer’s obligation to pay LCA wages through the LCA period.4 The

  4       “If the H-1B [including E-3 nonimmigrants] nonimmigrant is not performing work
  and is in a nonproductive status due to a decision by the employer (e.g., because of lack of
  assigned work), lack of a permit or license, or any other reason except as specified
  in paragraph (c)(7)(ii) of this section, the employer is required to pay the salaried

  employer’s lack of work or the employee’s misconduct do not excuse an employer’s
  failure to pay wages.

        In this case, Respondent argues that Complainant misled Respondent by
  handling all the paperwork, making all the arrangements, and misrepresenting the
  binding nature of LCAs. “Once [Complainant] secured his visa, he had no interest in
  abiding by the terms of the LCAs.” Resp. Br. 3.

         Complainant’s alleged misconduct does not affect Respondent’s duty to pay
  Complainant the wage set in the LCAs. The INA and the regulations provide
  that employers must submit labor condition applications to DOL. Respondent’s
  president Shadjareh signed both LCAs for submission to DOL as Complainant’s
  employer. Shadjareh’s signature affirms the truth of the statements on the LCA and
  acknowledges the employer’s agreement to those labor condition statements
  (attestations) that are specifically identified. Shadjareh testified that he signed the
  LCAs because he was relying on Complainant and Complainant’s attorney’s
  representations that they were just a formality and he wanted to do a favor for
  Complainant. D. & O. at 6, 9; Tr. 199. However Shadjareh may not evade his
  obligations under the LCAs by asserting that he did not believe the documents were
  valid or enforceable. We hold that Complainant’s misrepresentations, even
  assuming their success, do not relieve Respondent of the obligation to pay back
  wages.5

         Next, Respondent argues that Complainant did not comply with the terms of
  the LCA or regulations requiring him to work in the area of intended employment
  since he was outside of the United States. Respondent claims that it should be
  absolved of its wage obligations under the INA. Respondent failed to cite any legal
  authority empowering DOL to consider Complainant’s noncompliance with respect
  to LCAs as negating Respondent’s wage obligations under the INA. Without legal
  support, we find this argument is unpersuasive.


  employee the full pro-rata amount due.” 655.731(c)(7)(i) (emphasis added); Adm’r, Wage &
  Hour Div., U.S. Dep’t of Labor v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-
  007, slip op. at n.13 (ARB Aug. 4, 2016).
  5       Avenue Dental Care, ARB No. 07-101, slip op. at 8-9; Efficiency3 Corp., ARB No. 15-
  005, slip op. at 13-14.


  3. We remand for the ALJ to address the Respondent’s claim that
  Complainant’s complaint is untimely

         Finding for the Respondent on other grounds, the ALJ avoided Respondent’s
  claim that the Complainant’s complaint was untimely filed. D. & O. at 9. Regulation
  § 655.806(a)(5) provides that a complainant must file a complaint alleging a
  violation of the nonimmigrant worker regulations “not later than 12 months after
  the latest date on which the alleged violation(s) were committed, which would be
  the date on which the employer allegedly failed to perform an action or fulfill a
  condition specified in the LCA, or the date on which the employer, through its
  action or inaction, allegedly demonstrated a misrepresentation of a material fact in
  the LCA.” 20 C.F.R. § 655.806(a)(5) (emphasis added).

          Respondent argues to the Board that since Complainant was never
  authorized to work under the second LCA (because Complainant never renewed his
  E-3 visa for the second LCA period), the expiration date of the first visa, September
  12, 2013, is the latest date on which a violation could have occurred and he did not
  file his complaint until February 5, 2015, which would make such complaint
  untimely. Alternatively, Respondent asserts that Complainant’s complaint is
  untimely because Complainant voluntarily departed the U.S. on November 16,
  2013, and never returned. Respondent argues that it is irrelevant that it never
  effected a bona fide termination of Complainant’s employment.

          As we discussed above, the second LCA was signed by the Respondent,
  certified by the DOL, and constituted an obligation Respondent had to abide by
  until the expiration of the LCA period or an exception to that obligation was
  satisfied. Respondent’s argument attempts to shift the relevant focus to the
  Complainant’s activity but the regulations provide that the Complainant has to file
  a complaint “not later than 12 months after the latest date on which the alleged
  [employer’s] violation(s) were committed.” 20 C.F.R. § 655.806(a)(5). As such, we
  will remand to the ALJ to make appropriate findings of fact as to whether
  Complainant’s February 5, 2015 complaint was filed “not later than 12 months after
  the latest date on which” Respondent violated its LCA obligations.



  4. Computation of damages

         The ALJ stated that Complainant had never submitted a computation of his
  claimed damages. D. & O. at 5 n.1. Respondent also argues that Complainant failed
  in his burden to compute damages and that as a result, his complaint should be
  dismissed on this ground.

        The regulations governing proceedings before DOL ALJs provide that unless
  ordered otherwise, the prehearing statement before the ALJ must state “[a] precise
  statement of the relief sought.” 29 C.F.R. § 18.80(c)(3). General provisions regarding
  discovery provide that a party must provide to the other parties “[a] computation of
  each category of damages claimed by the disclosing party. . . .” 29 C.F.R.
  § 18.50(c)(1)(i)(C).

        Contrary to Respondent’s position and the ALJ’s findings of fact,
  Complainant provided a clear statement of the relief sought in the supplement to
  his complaint sent by his attorney to the Wage and Hour Division on February 5,
  2015,6 and also in the Complainant’s disclosure statement filed with the Office of
  Administrative Law Judges on July 24, 2017. In the supplement to the complaint,
  Complainant asserted Respondent owed him at least $109,385.58 in unpaid wages.
  Complainant alternatively stated that Respondent owed him $177,769.14, in unpaid
  wages considering the entire period of the two LCAs.7

         Additionally, in the July 24, 2017 Disclosure Statement, Complainant
  detailed anew that for the first LCA period Respondent owed him $43,169.00 plus
  interest for the period November 23, 2011, to seventeen months later (having taken
  into account payments made by Respondent to Complainant) and $8,876.88 plus
  interest for 72 days of work he performed during the period after Respondent ceased
  paying him beginning on July 3, 2013. Disclosure Statement at 4. With respect to
  the second LCA, Complainant stated that Respondent owed him $28,334.14 plus
  interest for the period September 12, 2013, to July 11, 2014 (when Respondent
  ceased paying him and having taken into account $21,473 in payments made by

  6    RX-2. This letter purports to support a complaint made by telephone call on
  December 9, 2014, and e-mails that followed the call.
  7      RX 2, at 4. Each of these amounts reflect a starting date of September 8, 2011, which
  does not appear to take into account that Complainant did not enter the U.S. to begin his
  employment until November 23, 2011.

  Respondent during this period) and $70,354.64 plus interest for the period July 12,
  2014, to the end of the second LCA period on September 12, 2015. The total amount
  computed as back wages was $150,734.66, plus interest, penalties, and attorney’s
  fees. As such, remand is necessary to allow the ALJ to make findings of fact
  consistent with this decision as to the amount of damages due Complainant.8



                                       CONCLUSION

         For the reasons explained above, we hold that the ALJ erred in concluding
  that the Respondent did not violate its LCA attestations and did not owe wages as
  specified in the LCAs. Accordingly, we REVERSE the decision and order below and
  REMAND to the ALJ to make findings of fact concerning the timeliness of
  Complainant’s complaint and a computation of damages. Within 120 days of the
  date of issuance of this decision, the ALJ will transmit to the Board the findings of
  fact mandated above as part of a revised Decision and Order on Remand that
  corrects the noted errors of law and is consistent with the holdings of this decision.

         SO ORDERED.




  8      We make clear that the ALJ is not constrained by Complainant’s calculations in
  making fact findings on the issue of back pay on remand and may develop the record as
  necessary.