Saini v. Hospital Care Consultants, Inc. (agency decision, February 16, 2024)

Plain-English summary

An administrative judge found that Hospital Care Consultants violated H-1B program requirements and awarded Vinay Saini remedies, attorney fees, and litigation costs. After both sides petitioned the Board for review, Saini identified a calculation error in the cost award. Because the appeal had already transferred jurisdiction to the Board, the administrative judge issued an indicative ruling stating that he would correct the amount from $1,401.57 to $2,001.57 if the case were remanded. The Board remanded for that limited correction and said the parties could petition for review after the new order issued.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1101(a)(15)(H)(i)(b) and 1182(n); 20 C.F.R. § 655.845(c); 29 C.F.R. § 18.94
• Outcome: Remanded for correction of the litigation-cost award from $1,401.57 to $2,001.57.
• Key point: An administrative judge may use an indicative ruling when a pending Board appeal prevents the judge from directly granting requested relief.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

IN THE MATTER OF:

VINAY SAINI, ARB CASE NOS. 2024-0021
2024-0022
COMPLAINANT,
ALJ CASE NO. 2022-LCA-00015
v. ALJ JOHN M. HERKE

HOSPITAL CARE CONSULTANTS, DATE: February 16, 2024 INC.,

        RESPONDENT,

  and

ADMINISTRATOR, WAGE AND HOUR
DIVISION, U.S. DEPARTMENT OF
LABOR,

        PARTY-IN-INTEREST.

Appearances:

For the Complainant:
Vinay Saini; pro se; Royal Oak, Michigan

For the Respondent:
John B. Brown, Esq., and Leigh N. Ganchan, Esq.; Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.; Dallas, Texas and Houston, Texas

Before HARTHILL, Chief Administrative Appeals Judge, and ROLFE, Administrative Appeals Judge

                        ORDER OF REMAND

PER CURIAM:

 This case arises under the H-1B visa program provisions of the

2

Immigration and Nationality Act, as amended.1 On January 4, 2024, a United States Department of Labor Administrative Law Judge (ALJ) issued a Decision and Order finding that Respondent Hospital Care Consultants, Inc. (Respondent) violated H-1B program requirements. The ALJ ordered various remedies in favor of Complainant Vinay Saini (Complainant), including attorney fees.

   On January 13, 2024, Complainant filed a motion for reconsideration with

the ALJ asking the ALJ to increase the attorney fee award and to award litigation costs. On February 1, 2024, the ALJ issued an Order Granting Motion for Reconsideration and Motion for Award of Attorney Fees and Costs (Reconsideration Order), modifying the attorney fee award and awarding litigation costs. On February 2, 2024, Complainant and Respondent each filed petitions for review with the Administrative Review Board (Board) seeking review of the ALJ’s orders.2

    On February 4, 2024, Complainant submitted an email to the ALJ noting a

calculation error in the litigation costs that had been awarded in the Reconsideration Order. On February 6, 2024, the ALJ issued an Indicative Ruling Pursuant to 29 C.F.R. § 18.94 (Indicative Ruling). The ALJ observed that the matter had already been appealed to the Board and, as such, the ALJ lacked jurisdiction to issue further orders or rulings in the case. However, the ALJ stated that, pursuant to 29 C.F.R. § 18.94, if the Board were to remand the matter for reconsideration of the amount of litigation costs awarded to Complainant in the Reconsideration Order, the ALJ would amend the Order to correct the amount of litigation costs from $1,401.57 to $2,001.57.

   Section 18.94 provides that “[i]f a timely motion is made for relief that the

judge lacks authority to grant because a petition for review has been docketed and is pending, the judge may [state] that the judge would grant the motion if the reviewing body remands for that purpose.”3 The regulation also provides that “[t]he movant must promptly notify the clerk of the reviewing body if the judge states that he or she would grant the motion.”4

1 8 U.S.C. § 1101(a)(15)(H)(i)(b); 8 U.S.C. § 1182(n); 20 C.F.R. Part 655, subparts H and I (2023). 2 The Board hereby gives notice of its acceptance of the petitions pursuant to 20 C.F.R. § 655.845(c). 3 29 C.F.R. § 18.94(a). 4 Id. § 18.94(b). 3

   On February 7, 2024, Complainant filed a Notice Under 29 CFR § 18.94 on

ALJ’s Indicative Ruling, providing notice to the Board of the ALJ’s Indicative Ruling and requesting that the Board remand the case to the ALJ to allow the ALJ to amend the Reconsideration Order. Upon consideration of the Indicative Ruling, we hereby REMAND this case to the ALJ to issue an order consistent with his Indicative Ruling. Upon the ALJ’s issuance of an order on remand, the parties may petition the Board for review pursuant to 20 C.F.R. § 655.845.5

  SO ORDERED.



                                    ____________________________________
                                    SUSAN HARTHILL
                                    Chief Administrative Appeals Judge




                                    ____________________________________
                                    JONATHAN ROLFE
                                    Administrative Appeals Judge

5 On February 10, 2024, Complainant filed a Motion for Order to Show Cause. That Motion is denied as moot.