Babes of H-1B Kick Butt

Those employers are also required to attest
that the employer will recruit U.S. workers
before hiring the H-1B workers. 20 C.F.R. '
655.736. The Respondent could only be categorized
as an H-1B dependent employer if it met the
requirements of 20 C.F.R. ' 655.736(a)(1)(iii),
which applies to employers with at least 51% of
its full time equivalent employees employed in
the United States and with H-1B workers comprising
at least 15% of those employees in the United States.

As the Respondent correctly points out, in Eva v.
Kolbusz-Kijne v. Technical Career Institute,
Case No. 93-LCA-0004 (Jul. 18, 1994), the Secretary
stated that the H-1B provisions do not prohibit or
prevent employers from hiring H-1B workers where U.S.
workers are available and that the H-1B provisions
are not intended to remedy the layoff of U.S. workers.

Ms. Wilson testified that she was told by Department
of Labor auditors after an audit of its payroll
records and LCA files that the Respondent is not H-1B
dependent. The Complainant has offered no evidence to
establish that the Respondent is an H-1B dependent employer.

The Complainant alleged in his February 25, 2002,
complaint that the IR System Technologist I and 2"
positions identified in some of the Respondents LCAs
do not meet the requirements for specialty occupations.
The determination of what constitutes a specialty
occupation falls within the authority of the Immigration
and Naturalization Service, not the Department of Labor.
20 C.F.R. ' 655.715. Thus, I have no jurisdiction to
consider the merits of this allegation.

The regulations very specifically require that the LCA
be posted in two or more conspicuous places so that
workers at the place of employment can read them. By
posting only one copy of the LCA at the work site,
while one copy is posted at the corporate headquarters,
the Respondent has failed to comply with the requirement.

In assessing whether the Respondents violation was willful
or not, I find it significant that the Respondent did post
two copies of the LCAs. Its deficiency was in failing to post
both copies of the LCAs at the actual worksite where the H-1B
workers would be working. Thus, I find the Respondent has
failed to comply with the posting requirement at 20 C.F.R. '

I find that the Respondents violation of the LCA posting
requirements was not willful. While a failure to post any
LCA whatsoever would be a willful violation, I do not find
a willful violation in this situation where notices were
posted, and the deficiency is in the failure to post the
second notice at the actual worksite. I also find that the
Respondents violation of the posting requirement was not
a substantial one.

* Making Guy sign a log book
* Refusing to let him see the LCAs after March 31
* Limiting the amount of time he had access to the LCA files - Guy

Ms. Wilson acknowledged that she notified the Complainant
in March 2002, that he would not be allowed any further
access to the LCA public records. She later allowed the
Complainant access to the LCA public files again after
conferring with the Department of Labor, but, at the
suggestion of a Department of Labor employee, she required
the Complainant to sign a log book to get access. The
Complainant was given access to the LCA public access
files as long as he signed the log book. The refusal
to allow the Complainant access to the public LCA files after
March 31, 2002, was a violation of the rules requiring
public access to LCA documents.

I do not find the Respondents failure to make the files
available to the Complainant in Santa Clara to constitute
a violation.

While no monetary penalties are assessed, it is appropriate,
however, to order the Respondent to modify its LCA posting
practices to require that the LCAs be posted at two
conspicuous locations at the actual worksite the H-1B
worker(s) will be working at. The Respondent may continue
to post the LCAs at its corporate headquarters, but that
posting cannot be considered one of the two required postings.

The Respondent is ORDERED to change its posting practices with
regard to the LCA applications to post copies of the LCA in
two conspicuous locations at the actual worksite the H-1B
worker(s) will be working at.

a) Bashki and Karumanchi are H-1Bs
b) What their salary was
c) Whether they worked in Santiglia's department

With reference to the Complainants allegation that the
Respondent failed to accurately state the prevailing wage
to be paid to the H-1B workers, the Complainant alleged
in his prehearing statement that the Respondent failed
to accurately state the wage that would be paid to two H-1B
workers hired in August 2001, whom he identified as
Andre Bashki and Raghava Karumanchi.

The Complainant has failed to offer evidence to support his
claim. There is no evidence that Andre Bashki and Raghava
Karumanchi are, in fact, H-1B workers or that they worked in his
department.

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