Opinion handed down December 14, 2015
In 2005, Alena Gay Arat, a therapist from the Philippines, was hired by Greater Missouri Medical Pro-Care Providers, Inc. (“GMM”) to work as a therapist in the United States via the H-1B program for temporary workers.[1] In 2006, Arat filed a complaint alleging GMM violated H-1B program statutory and regulatory requirements.[2] An investigator for the Department of Labor (“DOL”) investigated the allegations set forth in the complaint, as well as GMM, to determine whether it had generally complied with the H-1B statutory and regulatory requirements.[3]
Based on evidence from the DOL’s investigation, the Secretary of Labor held that GMM violated H-1B statutory and regulatory requirements and ordered that GMM pay back wages to a number of employees.[4] GMM requested and was granted a hearing before a DOL administrative law judge (“ALJ”).[5] The ALJ upheld the Secretary’s finding and GMM appealed.[6] The Secretary’s finding was affirmed by the DOL administrative review board (“ARB”) and the district court and subsequently appealed to the U.S. Court of Appeals for the Eighth Circuit.[7] The Eighth Circuit reversed the district court’s decision, finding that the Secretary did not have the authority to investigate whether GMM had generally complied with the H-1B statutory and regulatory requirements based on the allegations made in a single “aggrieved party” complaint.[8]
I. Facts and Holding
In 2006, Arat, a therapist from the Philippines, filed a complaint with Missouri government officials alleging GMM had violated several H-1B requirements by not paying the salary promised to her until she passed a therapist licensing exam and threatening to recover for “breach of contract” upon Arat’s early termination of her employment contract.[9] The complaint was relayed to the DOL, where it was treated as an “aggrieved party” complaint.[10] After reviewing the complaint, a DOL investigator concluded that the Secretary of Labor had “reasonable cause” to investigate the charges.[11]
In accordance with the DOL’s standard practice for all H-1B investigations, the investigator initiated a full investigation under the H-1B provisions of the Immigration and Nationality Act (“INA”) to determine whether GMM had failed to comply with statutory or regulatory requirement.[12] On August 4, 2006, Simon sent GMM a “standard” DOL form letter notifying GMM that DOL would be conducting an investigation under the H-1B labor condition applications provisions.[13] Simon also requested all of GMM’s H-1B documents and records (including documents and records of all other employees hired under the H-1B program).[14]
The investigation resulted in the Secretary finding that GMM:
(1) improperly failed to pay required wages to employees GMM had placed in nonproductive status, including employees studying to obtain occupational licenses; (2) made improper deductions from employee wages for attorney and H-1B petition fees; and (3) “required or attempted to require” improper penalty payments for early termination from some employees.[15]
The Secretary ordered GMM to pay damages in back wages to forty-five employees.[16]
GMM subsequently requested a hearing before an ALJ to review the Secretary’s findings.[17] GMM and the Secretary filed motions for summary judgment.[18] GMM argued in its motion that “the applicable statute and regulation limited an aggrieved party complaint to the specific issues of the Complaint.”[19] The ALJ disagreed and granted partial judgment to the Secretary, noting that the Secretary’s broad investigation of GMM was within his statutory and regulatory authority.[20]
GMM petitioned the DOL’s ARB for review, which affirmed the ALJ’s decision in part and reversed in part.[21] The ARB decided the Secretary’s “aggrieved party” complaint investigation was not limited to allegations in the complaint.[22] GMM appealed the ARB’s decision to the district court pursuant to the Administrative Procedure Act’s Section 702.[23] The district court upheld the ARB’s decision, explaining that the Secretary’s interpretation of Section 1182(n)(2)(A) was reasonable.[24]
Finally, GMM appealed the district court’s decision to the U. S. Court of Appeals for the Eighth Circuit, which reversed the district court’s decision.[25]
II. Legal Background
The H-1B visa is given to people from other countries who want to come to the United States to work and whose occupation is classified as a specialty occupation.[26] Employers with H-1B visa employees must fulfill requirements set forth by INA and regulations promulgated by the DOL.[27]
Under 8 U.S.C. § 1182(n)(2)(A), when the Secretary of Labor receives a complaint alleging statutory or regulatory violations, the Secretary must conduct an investigation “if there is reasonable cause to believe that such a failure or misrepresentation has occurred.”[28] Courts begin the analysis of whether an agency acted within its statutory authority by looking at the statute’s language.[29] If the statutory language provides a clear answer, the court ends its analysis.[30]
III. Instant Decision
The issue on appeal was whether the Secretary’s initial investigation into the “aggrieved party” complaint was within the scope of the Secretary’s authority under 8 U.S.C. § 1182(n)(2)(A). The Secretary argued that the “reasonable cause” language in § 1182(n)(2)(A) was enough to justify a comprehensive investigation into the employer’s statutory and regulatory compliance with the H-1B program as a whole.[31] Thus, according to the Secretary, the Secretary, based on one complaint, would have had the authority to investigate every action that the employer had taken with respect to the H-1B program and its H-1B employees.[32]
The Eighth Circuit dismissed the Secretary’s argument and held that the Secretary’s understanding of his investigatory authority was inconsistent with the plain language and structure of § 1182(n).[33] Instead, the court stated, “the Secretary’s initial authority to investigate an aggrieved-party complaint is unambiguously limited by the plain meaning of § 1182(n)(2)(A) to those timely allegations in the complaint for which the Secretary has found reasonable cause to investigate.”[34]
IV. Comment
For some people, the fact that the DOL needs more evidence than a single complaint to investigate whether employers are complying with H-1B statutory and regulatory requirements is disconcerting. However, in the opinion, the court cites to a number of other sections that provide DOL with the authority to investigate employer-wide compliance with H-1B statutes and regulations.
The more interesting issue, which recurs in administrative law cases, is the persistent tension between courts and administrative bodies resulting from a general disagreement over the administrative state’s authority and validity. In this instance, the court relied on the plain language of the statute to restrict the DOL’s authority to investigate pursuant to § 1182(n)(2)(A). Was the plain language so clear as to dismiss the case after Chevron step-one?
– Brian Scott
[1]Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132, 1133 (8th Cir. 2015).
[26] See H-IB Visa, U.S. Citizenship and Immigration Services,https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/h-1b-visa (last visited May 6, 2016). See also 8 U.S.C. § 1101(a)(15)(H)(i)(b) (2015).
[28] 8 U.S.C. 1182(n)(2)(A) (2015).
[29] Muscarello v. United States, 524 U.S. 432, 438 (1999).
[30] Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
