Why PG County Schools’ Wage Violations May Throw Its H-1B Teachers Out of the US

July 17, 2011

In the wake of Maryland’s Prince George’s County Public Schools (PGCPS) settlement agreement involving H-1B wage violations, questions have been raised about the unfair affect this is having on the victims, the teachers who will be forced to leave their jobs and the United States once their H-1B time runs out.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements for each job based on the profession and location (known as the prevailing wage) and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefitting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent atttorney.

For more information about legal services we provide to H-1B employees with wage claims, please see our blog we co-author with Attorney Michael Brown here.


MD County’s Public Schools Barred from H-1B program and Fined for Wage Violations

July 15, 2011

In a settlement agreement signed this month in connection with H-1B wage violations, Maryland’s Prince George’s County Public Schools (PGCPS) system must reimburse more than 1000 teachers $4.2 million in H-1B application fees and pay a $100,000 fine. The Department of Labor and USCIS have also barred the school system from filing applications for work visas for two years.

In April, the Department of Labor investigated PGCPS’ practice of requiring foreign teachers to pay their H-1B applications fees and found it to be a willful violation of the H-1B regulations prompting the fine and debarment. The investigation covered applications filed between May 2005 and January 2011, which amounts to 1044 teachers who must be reimbursed a total of $4,224,146.

Initially PGCPS was assessed $1,740,000 in civil penalties due to the violations, but in the settlement agreement this month that amount was reduced to $100,000 on the condition it not file any H-1B or green card applications for the next two years. If it fails to adhere to the condition, PGCPS will be required to pay the higher penalty.

The debarment does not affect active H-1B visas, but when these H-1B periods expire, the school system will not be able to file for extensions, putting these teachers out of work.

DOL and USCIS must be encouraged to continue holding H-1B program violators accountable. If you know of any DOL or USCIS actions against H-1B violators, let us know.

For more information about H-1B wage violations, benching, underpayment, and the rights of H-1B employees, please visit our blog H-1B Legal Rights, which we co-author with Employee Rights Attorney Michael Brown of Peterson, Berk & Cross.


Feds Cracking Down with Criminal Convictions against Employers for H-1B and Work Visa Fraud

May 19, 2011

H-1B and other employers who run work visa scams have more to fear than just the Department of Labor for their violations. These employers increasingly are facing criminal convictions and imprisonment on charges typically used against organized crime and trafficking rings, such as the Mafia.

In the past several months, federal prosecutors have publicized several cases against employers who were convicted under trafficking and criminal RICO (Racketeer Influenced and Corrupt Organizations Act) laws for procuring and exploiting foreign workers through visa fraud.

Of note, in March 2011, federal prosecutors in New Jersey reported that the owner of a tech staffing company was sentenced to six months in prison, fined $50,000 and ordered to forfeit an additional $296,921.82 for money laundering in connection with trafficking in immigration documents used to obtain H-1B visas and green cards for Indian workers. Six immigrant employees who paid the employer for the fake visas pleaded guilty and were placed on supervised probation, according to the Department of Justice (DOJ) press release.

The owner, Nilesh Dasondi, pleaded guilty to submitting employment-based visa applications for unqualified and ineligible foreign workers for jobs that did not exist at his company, formerly  Cygate Software & Consulting, now Sterling System LLC. When the workers arrived in the United States, the employer told them to go find jobs elsewhere. The employer then ran fake payrolls for these employees to make it look like they were working for the company. As part of the scam, the employees had to reimburse the employee for this payroll and related expenses, DOJ said.

In April, two other staffing company owners  in Iowa were convicted of H-1B visa fraud and sentenced to more than three years in prison and ordered to forfeit more than $ 1 million in proceeds. Fazal Mehmood and Viheet Maheshwari, who ran Worldwide Software Services and Sana Systems, plead guilty to applying for H-1B visas for foreign workers that contained false statements about their jobs and work locations typical of body shop scams, according to DOJ. For example, they told the government that employees would be working as programmers and analysts, but those jobs did not exist.

In an unrelated case, eight co-workers of  several connected Missouri and Kansas staffing companies that provided labor to the service and construction industries nationwide were similarly convicted of human trafficking and RICO charges for securing visas for illegal workers, DOJ said. The employers exploited the workers by threatening deportation if they complained about the working conditions that amounted to indentured servitude. They were forced to live in crowded apartments for which they were charged exorbitant rents, they worked but were not paid for overtime, and numerous “fees” were deducted from their paychecks resulting in negative earnings ensuring their “debt” to the employer could never be paid.

The Department of State has launched a public education campaign to combat exploitation and trafficking of foreign workers. More information on this resource is available in our blog article Handy Government Guide to Employee Rights; Download and Keep It With You.

If you believe the visa application your employer submitted for your visa may have contained false statements, you should contact an attorney as soon as possible.

For more information about legal services for H-1B employees who suspect they have been victims of employer fraud, please visit our co-authored H-1B Legal Rights blog, blog page here.