OALJ on H-1B Repayment Agreement: Matter of Woodmen of the World Life Insurance Society

Matter of Woodmen of the World Life Insurance Society, Oct. 26, 2016- "The rub is whether the actual wage is what Woodmen Life paid Garcia ($92,880.77) or whether it should be based on what it paid five other non H-1B System Test Engineers who had similar qualification and experience as Garcia ($79,094, on average). Complicating the analysis is the fact that some (or perhaps even all) of the $4,575 deducted pursuant to the Employee Repayment Agreement came from Garcia’s unused vacation time. The parties do not agree on where the $4,575 deduction came from; however, given that his gross pay for the nine days he worked totaled $3,214.78, that sum is insufficient to cover the $4,575 deduction. JX-10. His unused gross vacation pay was $9,644.33, which clearly could have covered the entire deduction. JX-10 & 12. For purposes of my analysis, I find that the entire deduction was taken from Garcia’s unused vacation pay and address the Administrator’s arguments under section 655.731(c)(3) and (c)(9). Because that is dispositive, I need not enter the thicket of whether Garcia was paid the required wage because there was no deduction from his actual wage of $92,880.77. ... I find that Woodmen Life did not violate § 655.731(a)(3) because Garcia’s benefits were offered on the same basis and in accordance with the same criteria as offered U.S. workers. To give Garcia full payment for his unused vacation time and not allow a deduction pursuant to the terms of his repayment agreement places Garcia in a better position than Woodmen’s other U.S. employees with repayment agreements and unused vacation time. ... Because $4,575 deduction for H-1B attorney fees came from the benefits side of the equation and not Garcia’s required wage, this section is inapplicable to the case at bench. The Administrator’s reading of the regulation as prohibiting any deduction of H-1B attorney fees and costs from an employees pay or benefits is far too broad and not supported by the plain language of the regulation. ... Woodmen Life’s Cross Motion for Summary Decision is GRANTED and the Administrator’s Motion for Summary Decision is DENIED. Woodmen Life paid Garcia his required wage and no back wage assessment is required."