For over 20 years, DOL has insisted that it may investigate the whole of an H-1B employer’s LCA compliance practices when it finds reasonable cause to believe a violation has been committed based on the allegations contained in an LCA complaint filed by or on behalf of an aggrieved party or organization — no matter how limited the violation alleged or the 12-month limitations period governing the complaint. In a case of first impression applying standard rules of statutory construction, on December 14, 2015, a divided panel of the United States Court of Appeals for the Eighth Circuit ruled 2-1 that DOL had exceeded its statutory authority by insisting from the outset upon the conduct of an over-broad investigation of the employer’s compliance with all of the LCA attestation regulations despite the limited nature of the violation alleged by a single H-1B worker and the limitations period applicable to that alleged violation. As a consequence, the majority vacated the judgment of the district court affirming the final DOL order directing the employer to pay 52 H-1B workers more than $360,000 thousand in back wages plus pre- and post-judgment based on violations discovered because of the unauthorized scope of the investigation from the outset. See Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, http://caselaw.findlaw.com/us-8th- Circuit/1720691.html#sthash.g5wXP9RU.dpuf.
It is impossible to overstate the legal significance of this decision. Going forward, at the outset of every LCA investigation, DOL should be challenged to disclose the filing date giving rise to jurisdiction and the specific violation(s) alleged. Employers and their counsel should refuse to turn over documents and information demanded by the agency that exceeds the reasonable time and scope of the identified violation(s). Finally, employers contesting non-final LCA determinations before DOL administrative law judges or the Administrative Review Board should insist upon the dismissal of all liability findings, back pay orders, civil money penalties and other sanctions discovered that were discovered as a result initially-ordered, and comprehensive investigations as ultra vires.
Congratulations to Greater Missouri Health Care and its lawyers for preservering throughout the lengthy DOL review process and securing an important victory for H-1B employer-sponsors who have too long suffered from the agency’s over-broad, unauthorized enforcement over-reach.