DHS Court Says to Employer: Four Strikes and You Are NOT Out

By David North, April 19, 2017

The infinite solicitude that some parts of the Department of Homeland Security lavish on exploitative employers of aliens was displayed in a recent adopted (i.e., precedent) decision by its Administrative Appeals Office (AAO), an in-house court.

The employer in question had applied four times to bring in a temporary worker (L-1B) at illegally low wages, promising to pay the alien (in the most recent instance) "43,445 MYR per year. When converted from Malaysian ringgits (MYR) to U.S. dollars, this proffered salary is the equivalent of $13,467.95 per year or $6.47 per hour", according to the decision. This was the sequence of governmental actions in this case:

  • April 8, 2013. A consular officer refused to grant the worker an L-1B (multi-national corporate employee) visa "based in part on the low salary that the Petitioner had offered the beneficiary", again according to a footnote in the AAO decision.

  • May 13, 2013. Another consular decision was made along the same lines.

  • An unknown date in the following year or two. The staff of the USCIS California Service Center rejected a petition to cause the admission of the worker at the stated wage. The employer, using a lawyer, appealed.

  • April 14, 2015. The AAO stated: "We are unable to approve an employment-based visa petition where the record indicates that a petitioner will not pay its beneficiary the minimum wage."

One would think that after four strikes the administrative court judge would simply deny the appeal, but no; AAO decided to remand the decision back to the service center, commenting: "We considered whether the indicated salary could involve a scrivener's error [legalese for a typographical mistake], such that the Petitioner intended to state a salary in U.S. dollars rather than Malaysian ringgits ... we are remanding this matter to allow the Petitioner an additional opportunity to address this issue."

Thus, AAO decided that the employer should be given a fifth opportunity to offer the worker a wage in excess of $7.75 an hour. AAO was saying, in effect, that the poor bumbling employer had made the same mistake in only four consecutive government applications, and should now have another chance.

Why has this odd 2015 decision — one of literally thousands made by AAO that year — come to public attention now? Someone in the USCIS bureaucracy, presumably between the level of the administrative judge who wrote the decision, and the handful of new political employees in that agency, decided (two years after the fact) that the decision should be sorted out from the huge number of non-adopted decisions as it "establishes policy guidance that applies to and binds all USCIS employees." The quotation is from the April 12, 2017, policy memorandum that was published along with the decision.

On a More Cheerful Note. It is a good idea to publish precedent decisions, as most court systems do, as it encourages a more consistent set of rulings. In this case, the precedent that stimulated DHS was that the government should not permit the admission of workers who will be paid less than the minimum wage; that's almost beyond basic. One could wish, however, that DHS had picked a better decision that followed that line.

Secondly, AAO, whose penchant for secrecy approaches the bizarre, allowed the names of the employer and its lawyer to be published in this case, as it does not in routine AAO cases.

We have, as a result, these two newcomers to the Immigration Hall of Fame: I-Corp, apparently (there are many outfits with names like that) a middle-sized, Phoenix-based consulting and outsourcing firm, and Juan C. Flamand, also of Phoenix, the lawyer who did not realize that you can't import workers paid less than the minimum wage.

I don't mind the name of the worker being left out, but we should be told the name of the AAO official who made the initial decision, which is the almost universal pattern in comparable judicial and semi-judicial systems.