U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

VIMALRAJ MANOHARAN,

PROSECUTING PARTY,

ARB CASE NO.

2021-0060

ALJ CASE NOS. 2018-LCA-00029

2021-LCA-00009

DATE: April 14, 2022

HCL AMERICA, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Vimalraj Manoharan; pro se; Tamilnadu, India

For the Respondent:

R. Blake Chisam, Esq., K. Edward Raleigh, Esq., and Samantha A.

Caesar, Esq.; Fragomen, Del Rey, Bernsen & Loewy, LLP; Washington,

District of Columbia

Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas

H. Burrell and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the H-1B visa program of the

Immigration and Nationality Act (INA), as amended, 8 U.S.C. § 1101(a)(15)(H)(i)(b)

(2014) and 8 U.S.C. § 1182(n) (2013), and its implementing regulations at 20 C.F.R.

Part 655, subparts H and I (2020). Vimalraj Manoharan (Complainant) filed a

complaint against his former employer, HCL America, Inc. (Respondent), with the

Wage and Hour Division of the U.S. Department of Labor (WHD), alleging that

Respondent failed to pay him required wages and terminated his employment in

retaliation for protected conduct. After an investigation, the WHD determined that

Respondent had failed to pay Complainant all of his required wages and awarded

Complainant back wages. The WHD later found that the retaliation claim was not

substantiated. Complainant filed objections to the WHD’s findings and requested a

hearing with an Administrative Law Judge (ALJ).

Respondent filed a motion for summary decision on the back wages claim.

The ALJ granted summary decision, holding that Respondent did not owe

Complainant further wages. Complainant thereafter submitted a motion to recuse

the ALJ from the proceedings, which the ALJ denied. Complainant again moved for

recusal of the ALJ a few months later, which the ALJ denied. Respondent moved to

dismiss the retaliation claim for lack of prosecution, which the ALJ granted.

Complainant appealed the ALJ’s decisions to the Administrative Review Board

(Board). We affirm.

BACKGROUND

Complainant, an Indian national, worked for Respondent as an H-1B

nonimmigrant. The first approved Labor Condition Application (LCA) and H-1B

petition (Petition) for Complainant’s employment in Sunnyvale, California, both

specified an end date of February 20, 2018.1 On July 16, 2015, Complainant entered

the United States and arrived at work the following day.2 Upon entering the U.S.,

the Department of Homeland Security’s United States Citizenship and Immigration

Services (USCIS) issued Complainant an I-94 form that authorized him to stay in

the country until March 1, 2017.3 On October 7, 2015, Respondent filed a new LCA

for a position in Galesberg, Michigan, ending on September 29, 2018.4 After the

Department of Labor (DOL) approved the LCA, Respondent filed an amended

Petition for Complainant. On April 11, 2016, USCIS approved the second Petition

with an end date of March 1, 2017.5

Complainant traveled to India in April 2016.6 Upon his return to the U.S. on

April 29, 2016, the Customs and Border Patrol (CBP) issued a new I-94 authorizing

him to stay until February 20, 2018.7 On December 3, 2015, Respondent filed

another LCA to employ ten H-1B workers in Seattle, Washington, until November

Decision and Order Granting in Part Respondent’s Motions for Summary Decision

(D. & O.) at 3; Respondent’s Exhibit (RX) B, D.

D. & O. at 3.

RX G.

RX E.

RX H.

RX F.

Id.

2, 2018, which the DOL approved.8 On June 12, 2016, Respondent filed a Petition to

employ Complainant under the third LCA with an end date of November 2, 2018.9

USCIS never approved the third petition.

On January 21, 2017, Respondent notified Complainant that his last day of

work would be February 3, 2017, which it later extended to February 10.10 On

February 16, 2017, Respondent requested the Department of Homeland Security

(DHS) to cancel Complainant’s H-1B work permits, which DHS confirmed on March

6.11 On May 9, 2017, Complainant left the U.S.12

On February 22, 2017, Complainant filed a complaint with the WHD,

alleging that Respondent had committed several violations of the H-1B provisions of

the INA, including failure to pay him the required wage rate and retaliation for

protected activity. On August 2, 2018, the Administrator of the WHD

(Administrator) issued a determination letter finding that Respondent had violated

the INA by failing to pay Complainant all of his required wages.13 The WHD found

Respondent had failed to pay Manoharan the required wage rate from February 1,

2017, to March 1, 2017.14 However, the WHD did not award damages because

Respondent had since paid the wages it owed to Complainant.15 The WHD later

found that the retaliation claim was not substantiated.16

Complainant requested a hearing with an ALJ, arguing that the back wage

assessment was too low because the WHD incorrectly determined the start and end

dates of his employment and contesting the WHD’s finding that the retaliation

claim was not substantiated.17 On March 4, 2021, Respondent moved to dismiss the

RX J.

Id.

D. & O. at 10.

Id.

Id. at 2; RX Q.

RX N, O.

D. & O. at 2. Respondent had owed $8,999.45. Id.; RX Q.

D. & O. at 4; RX S. The Administrator initially failed to issue findings on the

retaliation claim in the determination letter, and the Board later ordered her to provide her

findings. Manoharan v. HCL Am., Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029

(ARB Dec. 7, 2020). On February 25, 2021, the ALJ consolidated the retaliation claim with

the back wages claim.

The ALJ had dismissed the back wages claim on October 2, 2019, because the WHD

declined to prosecute it. The Board reversed and remanded the decision and held that

retaliation claim, contending that the ALJ lacked jurisdiction over the claim, that

Complainant failed to allege that he had engaged in protected conduct, and that the

claim was time-barred. On March 17, 2021, Respondent moved for summary

decision on the back wages claim, arguing that it did not owe further back wages

because the WHD’s assessment used the correct start and end dates of

Complainant’s employment.18

On March 31, 2021, the ALJ issued a Decision and Order granting

Respondent’s motions in part.19 The ALJ concluded that the WHD had correctly

determined the beginning and end dates of Respondent’s wage obligation to

Complainant. However, the ALJ concluded that she had jurisdiction to review the

retaliation claim and declined to dismiss the claim because there were genuine

issues of material fact regarding whether the claim was time-barred or if

Complainant had engaged in protected activity.20

For the back wages claim, the ALJ first determined when Complainant had

“entered into employment” for Respondent. Complainant contended that he had

started his employment on February 9, 2015, the day he signed his employment

offer letter.21 The ALJ highlighted several exhibits from 2015 that contradict

Complainant’s assertion, including: (1) a February 9 letter stating that the offer was

contingent on passing a background check and holding a valid visa permit; (2) a

February 9 email informing Complainant the first step toward joining Respondent

was filling out a joining form; (3) a February 20 email advising Complainant the

visa process could take around three weeks; (4) a March 24 email notifying

Complainant that his visa transfer was approved; (5) an email on April 7 stating

that Respondent was still waiting on the approval documents; (6) paystubs showing

Complainant was still working for his previous employer until at least April 8; (7) a

May 4 email from Complainant stating he had not “even joined HCL yet”; and (8) a

June 2 email stating that Complainant would be joining Respondent “very soon.”22

Complainant could act as prosecuting party for his claim. Manoharan v. HCL Am., Inc.,

ARB No. 2020-0007, ALJ No. 2018-LCA-00029 (ARB Dec. 21, 2020).

On March 8, 2021, the ALJ denied a motion for summary decision filed by

Respondent on February 18, 2021, as moot because the parties consolidated the back wages

and retaliation cases on February 25, 2021. D. & O. at 2.

The decision’s title was “Decision and Order Granting in Part Respondent’s Motions

for Summary Decision and Affirming the Determination of the Administrator.” The ALJ

reissued the decision on April 1, 2021, with a Notice of Appeal Rights. The ALJ also ruled

on two issues in the decision that are not pertinent to this appeal.

D. & O. at 11-12. The ALJ treated the motion to dismiss as a motion for summary

decision because the arguments included exhibits. Id. at 2 (citing Hoffenberg v. Hoffman &

Pollock, 288 F. Supp. 2d 527, 534 (S.D.N.Y. 2003)).

Id. at 5.

Id. at 8-9.

The ALJ noted a July 10, 2015 email from Respondent stating that

Complainant had “joined HCL 3 months back.”23 However, the ALJ discounted it as

inconsistent with the rest of the evidence and insufficient to support a February 9

start date.24 The ALJ thus concluded there was no genuine issue of fact that

Complainant had entered into employment on July 17, 2015, the first day he

reported for work.25

The ALJ then considered the end date of Complainant’s period of authorized

employment. Respondent argued that the wage obligation ended on March 1, 2017,

the end date on Complainant’s most recently approved Petition.26 Complainant

argued that the date on his I-94 form, February 20, 2018, should be the end date.27

The ALJ determined that no authority supported Complainant’s argument and

agreed with the end date of March 1, 2017.28 Accordingly, the ALJ determined that

Respondent owed no further wages and granted summary decision on the claim.

On April 1, 2021, Complainant submitted a Motion to Recuse the ALJ from

the proceedings, arguing that the ALJ demonstrated bias and partiality toward

Respondent.29 On the same day, the parties attended a scheduled formal hearing, in

which Complainant expressed an intention to appeal the summary decision.30 On

April 6, 2021, the ALJ denied Complainant’s motion, noting that Complainant made

no claims of personal bias against the ALJ, and ordered a stay of the proceedings

pending an appeal.31

On July 6, 2021, the ALJ issued an Order Requesting Hearing Dates,

rescinding the order to stay, and ordering the parties to provide three dates and

times for a hearing.32 After the parties had failed to agree on a date, the ALJ chose

Id. at 9.

Id.

Id. at 3. Respondent did not argue that it had performed a bona fide termination of

Complainant’s employment. Id.

Id. at 3, 10.

Id. at 10-11.

Order of Dismissal (OD) at 1.

Id. at 2. On April 21, 2021, Complainant petitioned the Board to review the ALJ’s

grant of summary decision on the wage claim and denial of the first recusal motion. The

Board dismissed the appeal because it was interlocutory. Manoharan v. HCL Am., Inc.,

ARB No. 2021-0031, ALJ Nos. 2018-LCA-00029, 2021-LCA-00009 (ARB June 30, 2021).

April 6, 2021, Order Denying Motion to Recuse at 1-3; OD at 2.

OD at 2.

July 27, 2021, a date offered by Respondent, and ordered the parties to refile

exhibits and witness lists by July 26.33 Complainant did not refile his exhibits and

witness list.34 On July 23, Complainant again moved to recuse the ALJ, alleging

bias and partiality.35 The ALJ denied the motion on July 26, holding that

Complainant failed to substantiate his claims of personal bias and that further

allegations of bias stemmed from Complainant’s general disagreements with the

ALJ’s orders.36

On July 26, 2021, at 11:07 PM, Complainant filed a Motion to Continue,

stating that he was unavailable to attend the July 27 hearing “due to other

commitments.”37 The ALJ cancelled the hearing and scheduled a status conference

with the parties on August 2, 2021.38 At the conference, Complainant explained that

he had filed the Motion to Continue because 7:00 p.m. is not during “business

hours” and he could not stop visitors from coming to his house.39 Complainant

further explained that he did not refile his exhibits as ordered because it was not

necessary and that the hearing was “meaningless” unless the ALJ also considered

the back wages claim.40 On August 3, 2021, Respondent moved to dismiss the

retaliation claim for lack of prosecution, citing Complainant’s failure to provide good

cause for delaying the hearing and failure to comply with the ALJ’s orders to submit

witness lists and exhibits.41

On August 16, 2021, the ALJ issued an Order of Dismissal, concluding that

Complainant’s conduct warranted dismissal of the retaliation claim and that any

lesser sanction would not alter his conduct. The ALJ noted that the Office of

Administrative Law Judges (OALJ) Rules of Practice and Procedure permitted

ALJs to manage their dockets to enhance the “orderly and expeditious disposition of

cases” and terminate proceedings for a party’s failure to comply with orders. As

grounds for the dismissal, the ALJ cited Complainant’s failure to comply with her

orders to resubmit exhibits, his belief that a hearing would be meaningless, the

filing of motions right before the hearing, his failure to justify his inability to attend

the scheduled hearing, the prejudice suffered by Respondent from the late filings,

Id. The ALJ had also ordered the parties to resubmit exhibits relevant to the

retaliation claim in the order granting summary decision. Id.

Id.

July 26, 2021, Order Denying Motion to Recuse at 1-3.

OD at 2.

Id.

Id. at 3.

Id.

and his failure to appear at the status meeting on time.42 The ALJ concluded that

lesser sanctions would not alter Complainant’s conduct because he continued to

protest her prior orders and used such disagreements to defend his failures to

participate in an orderly manner.43

The ALJ also concluded in the alternative that Complainant’s conduct

warranted his removal from the proceedings under the OALJ rules that permit an

ALJ to exclude a person for contumacious conduct such as refusal to comply with

directions, continued use of dilatory tactics, and refusal to adhere to reasonable

standards of orderly or ethical conduct.44 Complainant, acting pro se, would be

unable to prove his retaliation claim if removed from the proceedings.45 Accordingly,

the ALJ dismissed the retaliation complaint.

Complainant filed a timely Petition for Review of the ALJ’s grant of summary

decision, denials of the recusal motions, and dismissal of the retaliation claim with

the Board. On December 16, 2021, the Board issued an Order Directing

Supplemental Briefing, requesting the Administrator to file a brief explaining her

position that Complainant’s period of authorized employment ended on March 1,

2017, the end date on his Petition. The Board further asked whether the

circumstances of the case, including Respondent notifying Complainant and DHS

that the employment relationship ended, the expiration of the Petition on March 1,

2017, and Complainant leaving the country, constructively ended Respondent’s

wage obligation, even if the LCA sets the period of authorized employment. The

Board provided Complainant and Respondent an opportunity to respond to the

supplemental brief. The parties all filed timely briefs in response to the order.

JURISDICTION AND STANDARD OF REVIEW

The Board has jurisdiction to review the ALJ’s decision.46 Under the

Administrative Procedure Act, the Board, “as the Secretary of Labor’s designee, acts

with ‘all the powers [the Secretary] would have in making the initial decision.’”47

The Board reviews orders granting summary decision de novo and will affirm “if,

upon review of the evidence in the light most favorable to the nonmoving party . . .

Id. at 5-6.

Id. at 6.

Id. at 6-8.

Id. at 8.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

5 U.S.C. § 557(b); Lubary v. El Floridita, ARB No. 2010-0137, ALJ No. 2010-LCA00020, slip op. at 4-5 (ARB Apr. 30, 2012).

there is no genuine issue as to any material fact” and “the ALJ correctly applied the

relevant law.”48

DISCUSSION

Complainant presents several issues on appeal. First, Complainant argues

that the ALJ erred in concluding that the Administrator correctly determined the

start and end dates of Respondent’s wage obligation to him. Second, Complainant

contests the ALJ’s decision to dismiss the retaliation claim. Third, Complainant

argues that the ALJ should have granted his motions to recuse. We address each

argument.

1. Regulatory Background49

The INA’s H-1B provisions permit employers in the United States to hire

foreign nationals in certain “specialty occupation[s]” defined by the INA and its

implementing regulations (H-1B workers).50 “Four federal agencies (Department of

Labor, Department of State, Department of Justice, and Department of Homeland

Security) are involved in the process relating to H-1B nonimmigrant classification

and employment.”51

The H-1B hiring process involves three procedural phases. The first requires

the H-1B employer to file a completed LCA with DOL for certification.52 In the LCA,

the employer stipulates wage levels and working conditions for the H-1B worker for

the period of his or her authorized employment.53 The LCA must provide the start

and end dates of the employment and the number of nonimmigrants sought.54

Second, if DOL certifies the LCA, the employer must file an I-129 Petition with

USCIS, requesting permission to employ the H-1B worker and allowing the H-1B

beneficiary to apply for an H-1B visa.55 Third, if USCIS approves the H-1B petition,

Watson v. Elec. Data Sys. Corp., ARB Nos. 2004-0023, -0029, -0050, -0099, ALJ Nos.

2003-LCA-00030, 2004-LCA-00009, -00023, slip op. at 3-4 (ARB May 31, 2005). A genuine

issue of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

This analysis applies only to the H-1B program and not to similar programs like H1B1 and E-3.

8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1184(h)(i)(1).

20 C.F.R. § 655.705.

8 U.S.C. § 1182(n); 20 C.F.R. §§ 655.700 to 655.760 (Subpart H).

8 U.S.C. § 1182(n)(1)(A)(i); 20 C.F.R. §§ 655.731, 655.732 (2013).

20 C.F.R. § 655.730(c)(4).

20 C.F.R. § 655.705(a), (b).

it issues a Form I-797, Notice of Action, specifying the dates the nonimmigrant may

work for the employer. USCIS then shares the approval with the U.S. Consulate

where the nonimmigrant intends to apply for an H-1B visa, which authorizes the

worker to apply for admission to the U.S. during a designated period.56 The H-1B

beneficiary must apply to the U.S. State Department for an H-1B visa. When the

nonimmigrant arrives at a port of entry in the U.S. with a valid H-1B visa, CBP

authorizes the worker to stay in the country for a length of time, which is recorded

on a Form I-94.57

Once the Petition is granted, the petitioning employer assumes various legal

obligations after the H-1B beneficiary enters the country or becomes “eligible to

work for the employer.”58 An H-1B employer must pay the H-1B nonimmigrant the

required wage rate for the position for the entire “period of authorized

employment.”59 The required wage is the greater of either the prevailing wage rate

for the occupational classification in the geographic area of the H-1B employee’s

position or the actual wage rate paid by the employer to all other workers with

similar experience and qualifications for the position.60 The “period of authorized

employment” is defined by the validity dates provided in the I-797 form approving

the H-1B nonimmigrant’s Petition.61

The H-1B employer must provide an H-1B nonimmigrant worker “the

required pay beginning on the date when the nonimmigrant ‘enters into

employment’ with the employer.”62 An H-1B nonimmigrant “enters into

employment” when “he/she first makes him/herself available for work or otherwise

comes under the control of the employer, such as by waiting for an assignment,

reporting for orientation or training, going to an interview or meeting with a

customer, or studying for a licensing examination, and includes all activities

thereafter.”63

An employer is not required to pay the H-1B nonimmigrant during the period

of authorized employment in two circumstances. First, the employer does not need

20 C.F.R. § 655.705(b); 22 C.F.R. § 41.112(a).

This period may differ from the timeline provided in the H-1B visa. See 22 C.F.R. §

41.112(a).

20 C.F.R. § 655.731(c)(6)(ii).

20 C.F.R. § 655.731(a).

8 U.S.C. § 1182(n)(1)(A)(i); 20 C.F.R. § 655.731(a).

The period of authorized employment is modified by pending Petitions under certain

conditions, as discussed infra.

20 C.F.R. § 655.731(c)(6).

20 C.F.R. § 655.731(c)(6)(i).

to pay the required wage during nonproductive time due to conditions unrelated to

employment that take the nonimmigrant away from their duties at their voluntary

request and convenience or render them unable to work.64 However, the H-1B

petitioner must pay the required wage if the H-1B nonimmigrant is in

“nonproductive status” (i.e., not performing work) “due to a decision by the employer

(e.g., because of lack of assigned work).”65 Second, the employer may end its

obligation to pay the H-1B nonimmigrant through a “bona fide termination” of the

employment relationship, and it must inform DHS of such termination.66 Under

Board precedent, a bona fide termination occurs when the employer: (1) notifies the

H-1B nonimmigrant of the end of their employment relationship, (2) notifies DHS

that the employment relationship has ended, and (3) provides the employee with

payment for transportation home.67 The H-1B petitioner must pay for the H-1B

worker’s return to his or her home country in certain circumstances.68 If an

employer fails to pay the required wage rate, the Administrator shall assess back

wages equal to the difference between the wages paid and the wages that should

have been paid.69

2. The Back Wages Claim and Period of Authorized Employment

Complainant argues that the ALJ had incorrectly determined the start and

end date of Respondent’s wage obligation in granting the motion for summary

decision and that Respondent owed him further back wages.

A. Complainant’s Start Date

Complainant argues that the evidence raised a genuine issue of material fact

as to whether he had started his employment on July 17, 2015, and contends the

wage obligation began on February 9, 2015, the day he signed his employment offer.

Complainant describes a litany of exhibits that he claims the ALJ ignored, failed to

20 C.F.R. § 655.731(c)(7)(ii). Examples of nonproductive time due to conditions

unrelated to employment include “touring the U.S., caring for ill relative,” “maternity leave,

automobile accident which temporarily incapacitates the nonimmigrant,” etc. Id.

8 U.S.C. § 1182(n)(2)(C)(vii)(I); 20 C.F.R. § 655.731(c)(7)(i).

8 C.F.R. § 214.2(h)(11); 20 C.F.R. § 655.731(c)(7)(ii).

Puri v. Univ. of Alabama Birmingham Huntsville, ARB No. 2013-0022, ALJ Nos.

2008-LCA-00038, -00043, 2012-LCA-00010, slip op. at 8 (ARB Sept. 17, 2014) (identifying

exceptions to three-part test); see also Vinayagam v. Cronous Sols., Inc., ARB No. 20150045, ALJ No. 2013-LCA-00029, slip op. at 8 (ARB Feb. 14, 2017) (holding that the

employer’s wage obligation ended with its notice to DHS because the H-1B nonimmigrant

voluntarily chose to remain in the U.S. after her discharge).

8 C.F.R. § 214.2(h)(4)(iii)(E); 20 C.F.R. § 655.731(c)(7)(ii).

20 C.F.R. § 655.810(a).

address adequately, or demonstrate that he entered into employment prior to July

17, 2015. Most pieces of evidence highlighted by Complainant are not probative or

relevant. A few pieces of evidence, however, are relevant and warrant consideration.

Complainant notes a July 10, 2015 email from an employee for Respondent

stating Complainant had “joined HCL 3 months back.” Second, Complainant cites

two emails sent on April 15 and 22, 2015, from Respondent requiring him to attend

an induction meeting, which Complainant claims would qualify as “reporting for

orientation or training.” The ALJ acknowledged the July 10 email and dismissed it

as inconsistent with the rest of the record.

Respondent presents several pieces of evidence that indicate Complainant

began working for Respondent no earlier than July 17, 2015, including an email

from May 4, 2015, in which Complainant told employees he had not “even joined

HCL yet,” and a June 2, 2015 email from his eventual supervisor that stated

Complainant “will be joining HCLA America very soon.” Respondent notes that it

sent the induction meeting emails to everyone who had joined the company

recently, even if they had already attended a meeting, and that the emails were not

personalized. Complainant presents no evidence that he attended one of the

meetings. Most importantly, Complainant did not enter the U.S. until July 16,

2015, and reported for work the following day.

Complainant attempts to qualify his trip to India in early June 2015 for visa

stamping before entering the U.S. as “going to an interview.”70 However,

participating in the visa application process does not make a nonimmigrant

“available for work” or “under control of the employer,” since they are unable to

work for their employer prior to obtaining the visa and entering the country.71

Complainant also argues that a June 2, 2015 email, in which his future manager

informs another manager for Respondent that he could speak with Complainant to

“see if his profile suits” him, showed he had entered into employment. However, the

manager states in the same email that Complainant “will be joining” Respondent

“very soon,” indicating that the purpose of a discussion was for the manager to see if

Complainant could work with him when Complainant begins his employment.

We note that our review of the record indicates that Complainant failed to argue to

the ALJ that his June 2015 trip to India for visa stamping constituted “going to an

interview.” See Fredrickson v. The Home Depot U.S.A., Inc., ARB No. 2007-0100, ALJ No.

2007-SOX-00013, slip op. at 11 (ARB May 27, 2010) (“[S]ince [the complainant] had the

opportunity to . . . argue his contention to the ALJ before the ALJ issued his decision but

did not, he has waived this argument on appeal.”).

Complainant also argues that the interview at the consulate in India, which

Respondent mandated, was work because Respondent had the option to port his H-1B work

authorization from his previous job to the job for Respondent. However, Respondent notes

that it was unable to port Complainant’s prior H-1B authorization because Complainant

failed to produce records that he had been authorized to work in the US. See RX C.

The record shows no genuine issue that Complainant did not start working

for Respondent before July 17, 2015. Complainant presents limited evidence that,

viewed in a light most favorable to him, could convince a reasonable factfinder to

find otherwise.72 We therefore conclude that the ALJ correctly concluded that

Complainant entered into employment on July 17, 2015.

B. Complainant’s End Date

Employers are required to pay H-1B nonimmigrant workers the required

wage rate “for the entire period of authorized employment.”73 If an employer

discharges the employee but does not make a bona fide termination of the

employment relationship, “its obligation to pay [the employee] the ‘actual wage’

continue[s] until the expiration of [the employee’s] authorized period of

employment.”74

Complainant contests the ALJ’s conclusion that the Administrator correctly

concluded that his period of authorized employment ended on March 1, 2017, the

end date of Complainant’s most recently approved Petition. Complainant argues

that Respondent’s wage obligation continued until the end date specified in his first

LCA or second I-94, February 20, 2018.

As noted above, the employer first submits an LCA for DOL to certify, which

includes start and end dates and the number of nonimmigrants sought.75 Second,

the employer must submit an I-129 Petition for an H-1B nonimmigrant to USCIS

with the certified LCA attached.76 If USCIS approves the petition, it issues a Form

I-797 specifying the dates the nonimmigrant may work for the employer. The

employee may then apply for an H-1B visa at the U.S. Consulate. When the

nonimmigrant arrives at a port of entry in the U.S. with a valid H-1B visa, CBP

authorizes the worker to stay in the country for a length of time, which is recorded

on a Form I-94.

Horne v. United Parcel Serv., Inc., ARB No. 2008-0007, ALJ No. 2007-STA-00039,

slip op. at 8 n.44 (ARB May 29, 2009) (quoting Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.

2008)) (“When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

20 C.F.R. § 655.731(a).

Mao v. Nasser Eng’g & Computing Servs., ARB No. 2006-0121, ALJ No. 2005-LCA00036, slip op. at 10 (ARB Nov. 26, 2008) (citing 20 C.F.R. § 655.731(c)(7)(ii)).

20 C.F.R. § 655.730(c)(1), (c)(4).

20 C.F.R. § 655.705(b).

In her supplemental brief, the Administrator clarifies that the approved

Petition defines the scope of the period of authorized employment and cites

pertinent statutory and regulatory language in support. The Administrator notes

that the INA provides that the “question of importing any alien as a nonimmigrant”

under nonimmigrant work programs, including the H-1B, “shall be determined by

[DHS], after consultation with the appropriate agencies of Government, upon

petition of the importing employer.”77 DHS regulations provide that an alien

admissible in H-1B classification may work in the U.S. only during the validity

period of the petition.78 Thus, DHS is the agency that authorizes an H-1B

nonimmigrant to work for a period of time by approving a Petition, meaning the

period of authorized employment refers to the period specified in the I-797, the

Petition approval notice.

The Administrator further notes that the INA provides under its H-1B

portability provision that a nonimmigrant may accept “new employment” if the new

employer has filed a Petition for the new job before the previously authorized period

of stay expires.79 If the employer properly files a new Petition, “[e]mployment

authorization shall continue for such alien until the new petition is adjudicated.”80

Another DHS regulation provides that an H-1B worker whose work authorization

has expired may continue their employment for up to 240 days if their employer has

timely filed a Petition to extend the worker’s stay.81 Under either provision, the

nonimmigrant’s employment authorization ends if USCIS denies the Petition.82

The Administrator also explains that the LCA and I-94 do not determine the

period of authorized employment for an H-1B nonimmigrant. The Administrator

notes that a certified LCA permits an employer to hire H-1B workers for a certain

position but does not authorize it to employ a particular nonimmigrant. Indeed, the

DOL does not require an employer to provide the name of the H-1B worker who it

intends to employ on the LCA.83 Further, the I-94 permits an H-1B worker to stay

in the U.S. but does not provide them permission to work in the U.S.84

8 U.S.C. § 1184(c)(1) (emphasis added). Though the text of this provision tasks the

“Attorney General” to authorize the importation of a nonimmigrant, Congress transferred

the responsibility to adjudicate petitions to DHS in 2002. Hovhannisyan v. U.S. Dep’t of

Homeland Sec., 624 F. Supp. 2d 1135, 1142 (C.D. Cal. 2008) (referring to the Homeland

Security Act of 2002, Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (Nov. 25, 2002)).

8 C.F.R. §§ 214.1(l)(1), 214.2(h)(13)(i)(A).

8 U.S.C. § 1184(n); 8 C.F.R. § 214.2(h)(2)(i)(H).

8 U.S.C. § 1184(n)(1) (emphasis added).

8 C.F.R. § 274a.12(b)(20).

8 U.S.C. § 1184(n)(1); 8 C.F.R. § 274a.12(b)(20).

See 20 C.F.R. § 655.730(c)(4). H-1B regulations require an LCA to identify: (1) the

occupation, (2) the number of nonimmigrants sought, (3) the gross wage to be paid to the

We agree with the Administrator’s position. The INA and the relevant

regulations demonstrate that an LCA authorizes the employer to employ H-1B

nonimmigrants for a particular position in the country, while the approved Petition

authorizes an individual H-1B nonimmigrant to work for an employer in the U.S.

Complainant had two sources of employment authorization at the time Respondent

terminated his employment: the approved second Petition and the pending third

Petition. The pending Petition permitted him to work under the H-1B portability

provision until Respondent withdrew it on February 16, 2017. Therefore,

Complainant’s period of authorized employment concluded on March 1, 2017, the

end date on the second approved Petition. Accordingly, the ALJ correctly granted

summary judgment on the back wages claim.85

3. The Retaliation Claim

Complainant contests the ALJ’s decision to dismiss his retaliation claim

because of his conduct leading to the hearing. Complainant contends that the

dismissal conflicts with the ALJ’s stated desire to conduct a hearing on a new date

after postponing the scheduled hearing. Respondent argues that Complainant’s

failure to follow the ALJ’s orders and dilatory conduct justified the dismissal.

ALJs have the “inherent authority to ‘manage their own affairs so as to

achieve the orderly and expeditious disposition of cases’” and may dismiss a

proceeding because of a complainant’s failure to comply with orders.86 ALJs may

consider several factors to determine whether a dismissal is warranted, including:

(1) prejudice to the other party; (2) the amount of interference with the judicial

process; (3) the culpability, willfulness, bad faith, or fault of the litigant; (4) whether

nonimmigrants, (4) the starting and end dates of the nonimmigrants’ employment, (5) the

place of intended employment, (6) the prevailing wage for the occupation, and (7) whether

the employer is H-1B dependent or a willful violator and, if so, whether they will use the

LCA only in support for exempt H-1B nonimmigrants. Id.

Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 853 n.4 (9th Cir. 2004) (“An I-94 Form

is an alien arrival-departure record that serves as proof of the bearer’s current immigration

status and the time period during which his stay in this country is authorized.”).

The Administrator did not address the Board’s question whether the circumstances

of the case, including Respondent notifying DHS and Complainant of the end of the

employment relationship and Complainant leaving the country, constructively ended

Respondent’s wage obligation because her conclusion that the LCA does not define the

scope of the period of authorized employment made the question moot. Because it is not

necessary for us to rule on the question and Respondent did not argue that its wage

obligation constructively ended before March 1, 2017, we will not address it.

Ho v. Air Wisconsin Airlines, ARB No. 2020-0027, ALJ No. 2019-AIR-00009, slip op.

at 4-5 (ARB June 30, 2021).

the party was warned in advance that dismissal could be ordered for failure to

cooperate or noncompliance; and (5) whether the efficacy of lesser sanctions were

considered.87 The Board reviews an ALJ’s order of sanctions, including dismissal,

for abuse of discretion.88

The ALJ cited Complainant’s failure to follow her orders to resubmit exhibits

for the retaliation claim. Complainant did not admit his fault when the ALJ asked

about his failure to file the exhibits and instead argued that the refiling was

unnecessary and that the hearing was “meaningless” without considering the other

claims. A judge may decide to dismiss a case because of a party’s failure to comply

with their discovery orders,89 especially if a party fails to justify their

noncompliance.90

An “overall course of dilatory and contemptuous behavior” that interferes

with the judicial process may also justify dismissal.91 The ALJ noted that

Complainant filed two motions shortly before the two scheduled hearing dates: a

Motion to Recuse on the morning of the first hearing and a Motion to Continue on

the night before the second. Complainant reasoned that he had requested a

continuance the day before a hearing because he had guests visiting, which the ALJ

did not accept. Complainant was also late to the subsequent status conference and

had continually expressed disagreement with the ALJ’s past decisions, leading him

to file two Motions to Recuse the ALJ. The ALJ also credited Respondent’s

argument that the late filings caused prejudice because it had to coordinate the

attendance of witnesses, costing it time and expenses.

We hold that the ALJ did not abuse her discretion in dismissing the

retaliation claim. Though Complainant’s conduct was not extraordinarily egregious,

the circumstances supported the ALJ’s conclusion that Complainant’s recalcitrant

behavior was unlikely to improve, given his failure to admit his fault in failing to

follow the ALJ’s orders and continued objections to the ALJ’s past decisions.

Howick v. Campbell-Ewald Co., ARB Nos. 2003-0156 and 2004-0065, ALJ Nos. 2003STA-00006 and 2004-STA-00007, slip op. at 8 (ARB Nov. 30, 2004). These factors “do not

create a rigid test.” Id.

Ho, ARB No. 2020-0027, slip op. at 4.

29 C.F.R. § 18.57(b)(1)(v); see also Howick, ARB Nos. 2003-0156 and 2004-0065, slip

op. at 7; Ho, ARB No. 2020-0027, slip op. at 4; Lindner v. Citibank, N.A., ARB No. 20180066, ALJ No. 2018-SOX-00002, slip op. at 3 (ARB Jan. 28, 2020).

See Govindarajan v. N2 Servs., Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001,

slip op. at 2 (ARB Mar. 17, 2021).

Howick, ARB Nos. 2003-0156 and 2004-0065, slip op. at 9.

Complainant fails to present any persuasive argument that the ALJ erred in her

decision. Accordingly, we affirm the ALJ’s Order of Dismissal.92

4. The Motions to Recuse

Complainant contends that the ALJ should have granted his first and second

motions to recuse her from the proceedings. For each motion, the ALJ concluded

that Complainant failed to provide any evidence of bias or partiality. An ALJ may

recuse themselves if their “impartiality might reasonably be questioned” or they

have “a personal bias or prejudice concerning a party.”93 ALJs are “presumed to be

impartial,” and a party moving for recusal has a “substantial burden” to prove

otherwise.94 We review rulings on motions to recuse for abuse of discretion.95

Complainant provides several examples that he alleges shows bias, including

some clerical errors made by the ALJ and legal decisions that Complainant believes

were incorrect. Complainant further criticizes the ALJ’s hearing date selection,

claiming that she did not try to reconcile the date disagreements. However, recusal

generally is not warranted without “proof of an extra-judicial source of bias,”96

which Complainant fails to substantiate. Further, legal errors in ALJ orders, even

assuming arguendo that those occurred in this case, are not sufficient to prove

bias.97 Complainant fails to provide any justification for the ALJ’s recusal.

Accordingly, the ALJ did not abuse their discretion in denying the motions.

The ALJ, in the alternative, dismissed the claim because Complainant had violated

the standards of conduct before the OALJ, which warranted his exclusion from the

proceedings. See 29 C.F.R. §18.87(b). Thus, Complainant could not prove his case because

he represented himself. While we need not discuss this decision, we discern no abuse of the

ALJ’s discretion in dismissing Complainant on these alternative grounds. 29 C.F.R.

§18.87(c).

Vudhamari v. Advent Glob. Sols., ALJ No. 2018-LCA-00022, slip op. at 4-5 (ALJ Jan.

29, 2021), adopted and attached, ARB No. 2021-0018 (ARB Apr. 26, 2021).

Id. at 4 (quoting Billings v. Tennessee Valley Auth., Case No. 1991-ERA-00012,

slip op. at 4 (ARB June 26, 1996)).

Baiju v. Fifth Ave. Comm., ARB No. 2010-0094, ALJ No. 2009-LCA-00045, slip op.

at 7 (ARB Mar. 30, 2012) (reissued Apr. 4, 2012).

Vudhamari, ALJ No. 2018-LCA-00022, slip op. at 5.

Id. (quoting Matthews v. Ametek, Inc., ARB No. 2011-0036, ALJ No. 2009-SOX00026, slip op. at 3 (ARB May 31, 2012)).

CONCLUSION98

We AFFIRM the ALJ’s order granting summary decision on the back wages

claim, the Order of Dismissal, the Order Denying Motion to Recuse dated April 6,

2021, and the Order Denying Motion to Recuse dated July 26, 2021.

SO ORDERED.

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor (not the Administrative

Review Board).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.