The Dept. of Labor’s Administrative Review Board (ARB) has released a decision, reversing the Administrative Law Judge’s (ALJ) decision, finding that Pegasus Consulting Group, an IT consulting company, had “willfully violated the INA’s H-1B wage requirements”, by failing to comply with the H-1B program’s requirements. The ARB found that the evidence presented showed that Pegasus knew of its obligation to pay its H-1B employees in non-productive status or to terminate their employment. This knowledge and their failure to comply with these requirements, showed a “knowing failure” to comply with the H-1B wage requirements and, therefore, a “willful” failure to comply.” As such, the ARB found Pegasus liable of willfully violating the INA and assessed civil penalties (on top of the back wages the ALJ already previously assessed) in the amount of $5000. For full decision see: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/05_086.LCAP.PDF
This decision is telling, particularly for IT consulting companies whose employees are in non-productive status. The holding shows that even if a company relies on an employment contract, which Pegasus did in their argument, and did take some steps towards compliance, this is not enough to protect a company from being assessed civil penalties for noncompliance.