Federal Regulation Requiring 30 Day Review of H-1B Complaints Lacks Teeth

Gavel and book.jpgWhen an H-1B worker files a complaint against an employer for alleged violation of immigration laws, Federal Regulation requires that the Wage and Hour Division (WHD) Administrator shall conduct an investigation and issue a determination within 30 calendar days of the date of filing. 20 C.F.R. ยง 655.806(a)(3). The plain reading of this regulation does seem to suggest that that if you are an employer, and an H-1B worker files a complaint against you, the WHD Administrator must issue a determination within 30 calendar days, or else the complaint cannot go forward.

It would make sense that the whole purpose for this 30-day regulation would be to protect the employer against excessive government delay and guarantee a swift adjudication of the matter. Not so, according to the Department of Labor’s Administrative Review Board (ARB).

The ARB held that the time limits for processing a complaint are directional and not jurisdictional. U.S. Department of Labor vs. Integrated Informatics, Inc. ARB Case No. 08-127 (ARB January 31, 2011). In this case, the ARB held that the Administrator’s failure to meet the 30-day time period for completing his investigation and issuing an initial determination did not deprive the Administrative Law Judge of jurisdiction to consider the complaint. It did not matter to the ARB that the Administrator took over a year to issue a determination in that case.

Gross delays such as this are detrimental and prejudicial to H-1B employers, who in the interest of justice, should be entitled to a speedy hearing on the merits and have the opportunity to defend themselves in a timely manner. Excessive delays hamper the ability to gather timely documentary evidence and testimony that may be not only necessary, but crucial, to support their defense. If you are an H-1B employer, it may be in your best interest to contact your representative or senator in Congress and make your voice heard. This regulation should be enforceable and charges should be dismissed when the government is permitted to disobey its own 30-day regulation.