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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

ELLEN XIA,

COMPLAINANT,

ARB CASE NO. 2023-0046

ALJ CASE NO. 2022-LCA-00013

ALJ TIMOTHY J. MCGRATH

DATE: October 7, 2024

LINA T. RAMEY & ASSOCIATES, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Ellen Xia; Pro Se; Dallas, Texas

For the Respondent:

Andrew J. Broadaway, Esq.; Cornell Smith Mierl Brutocao Burton;

Austin, Texas

Before THOMPSON and ROLFE, Administrative Appeals Judges

ORDER REVERSING IN PART AND REMANDING IN PART

THOMPSON, Administrative Appeals Judge:

This case arises under the Immigration and Nationality Act (INA) and its

implementing regulations, as related to the H-1B visa program.1 On July 28, 2023,

an Administrative Law Judge (ALJ) issued a Decision and Order Modifying the

Administrator’s Determination (D. & O.) ordering Lina T. Ramey & Associates, Inc.

(Respondent) to pay Ellen Xia (Complainant) $78,914.00 in back wages2 and

8 U.S.C. § 1101(a)(15)(H)(i)(b); 20 C.F.R. § 655, Subparts H and I (2024).

D. & O. at 9.

$3,140.15 in transportation costs,3 plus interest.4 Xia appealed the matter to the

Administrative Review Board (ARB or Board). We reverse in part and remand in

part for further proceedings consistent with this opinion.

BACKGROUND

In October 2019, Respondent hired Xia, a Chinese citizen, to work in the

United States as a Design Engineer pursuant to an H-1B visa.5 Respondent filed a

Labor Condition Application (LCA) with the Department of Labor (DOL).6 The

United States Citizenship and Immigration Services (USCIS) approved Xia’s H-1B

petition for a period of authorized employment from October 3, 2019, through

October 2, 2022.7 According to the LCA, Xia would work out of the Farmers Branch,

Texas office and receive a salary of $70,720.00.8

On February 24, 2020, Respondent’s Senior Project Manager terminated

Xia’s employment at an in-person meeting for allegedly refusing to complete

assigned work tasks.9 Xia, for her part, claimed that any alleged refusal to work

resulted from being asked to do work that was outside of the LCA and because of

on-the-job racial and sexual harassment.10 A letter memorializing the termination

was left on Xia’s desk.11 The letter read in relevant part:

This letter confirms our discussion that your employment

with [Respondent] is terminated as of today. As discussed,

the reason for your termination is refusal to do work

assigned to you.

You will receive your accrued PTO in your final paycheck

which you will receive as part of the regular pay period on

March 6, 2020 . . . You are also eligible to receive

Id. at 10.

Id.

Id. at 3.

Id.

Id. Respondent’s president signed a sworn declaration that Respondent decided to

terminate Complainant’s employment on February 20, 2020. Id. at 5.

Id. at 3 n.5.

Id. at 3. The termination letter’s metadata verifies that it was created and last

modified on February 20, 2020. Id. at 5.

transportation costs to return abroad. Please notify

[Respondent] of your desire to do this by March 1, 2020.[12]

Xia did not open the termination letter, did not take it with her when she left the

office, and never returned to work for Respondent.13 She later applied for

unemployment benefits with the Texas Workforce Commission.14

Xia e-mailed Respondent on October 27, 2020, requesting payment for her

return ticket to China and package delivery fees.15 Respondent did not respond to

Xia’s request.16 Xia left the United States on December 8, 2020.17

On April 7, 2021, Respondent notified USCIS it terminated Xia’s employment

on February 24, 2020.18 USCIS revoked Xia’s H-1B visa on August 20, 2021.19

PROCEDURAL HISTORY

Prior to leaving the United States, on November 20, 2020, Xia filed a

complaint with the DOL’s Wage and Hour Division’s (WHD) Austin District Office

alleging various H-1B violations.20 Xia filed another complaint comprised of the

same allegations with the Dallas District Office on February 1, 2021.21

The WHD investigated Xia’s allegations and the Administrator of the WHD

(Administrator) determined Respondent failed to establish a bona fide termination

because it failed to notify USCIS and pay return transportation expenses.22 The

Id. at 3.

Id.

Id. at 5.

Id. at 3.

Id.

Id. at 4.

Id.

Id. A bona fide termination occurs when the employer: (1) gives notice of the

termination to the worker; (2) gives notice to the Department of Homeland Security

(USCIS); and (3) under certain circumstances, provides the non-immigrant with payment

for transportation home. Manoharan v. HCL America, Inc., ARB No. 2021-0060, ALJ Nos.

2018-LCA-00029, 2021-LCA-00009, slip op. at 10 (ARB Apr. 14, 2022) (citations omitted);

see 20 C.F.R. § 655.731(c)(7)(ii).

Administrator found Respondent owed Xia $56,304.00 in back wages, accruing from

February 24, 2020 to December 8, 2020 (the date Xia left the United States), and

$4,531.41 in travel expenses.23 The Administrator did not assess civil money

penalties.24

Xia timely appealed the Administrator’s Determination and requested a

hearing before the Office of Administrative Law Judges (OALJ).25 The

Administrator and Respondent filed a Joint Motion for Summary Judgment and

Entry of Consent Decree in which Respondent agreed to pay the entire amount

assessed by the Administrator.26 Xia opposed this agreement believing she was

entitled to additional back wages and fringe benefits.27 On November 18, 2022, the

ALJ issued an Order Denying Summary Decision and Setting Hearing Date.

Following this Order, the ALJ rescheduled the hearing several times due to various

filings and motions by the parties.28

On February 17, 2023, the ALJ named Xia as a Prosecuting Party but

required the Administrator to remain a part of the case to substantiate its

Determination Letter.29 Prior to the hearing, Respondent voiced concerns with

taking Xia’s testimony remotely due to his characterization of a Chinese law,

commonly referred to as a blocking statute, that he asserted prohibits Chinese

citizens, in effect, from ever testifying in foreign proceedings from mainland

China.30 The ALJ agreed with these concerns31 and advised Xia that she would need

to travel to the United States or a special administrative region of China to testify

at the hearing.32

D. & O. at 4.

Id.

Id. at 2.

Id.

Id.; Hearing Transcript (Tr.) at 6-8.

D. & O. at 2.

Id.; November 18, 2022 e-mail at 1-2; November 30, 2022 Telephone Conference

Transcript at 4-8, 10-11.

See Order on Four Pending Motions and Scheduling Hearing at 2-3 (ALJ Jan. 24,

2023) (citing Ji v. Jling Inc., No. 15-CV-4194 (SIL), 2019 WL 1441130, at *11 (E.D.N.Y.

Mar. 31, 2019) (“[B]y testifying via video link while located in mainland China, Ji violated

Article 277 of the Chinese Civil Law.”) (other citations omitted).

Id.

If Xia planned to testify remotely from a special administrative region of

China not subject to the specific probation concerning testimony to get around the

blocking statute, the ALJ also ordered her to provide the following information:

(1) the precise location from which she would be joining remotely; and

(2) a certification from a local attorney or official that all applicable legal

requirements concerning her testimony had been satisfied, including requirements

concerning the administration of an oath to a witness.

Neither the ALJ nor any of the parties provided a legal foundation for

granting OALJ the authority to order an unrepresented complainant to hire an

attorney or obtain authorization from an unspecified “official” in order to be

permitted to testify, however, nor was a legal source provided authorizing the ALJ

to enforce his interpretation of Chinese law.

On April 5, 2023, Xia submitted her proposed exhibits and a document titled,

“Certification of Compliance.” It stated in relevant part:

The precise location from which I will be joining remotely

at 142 Estrada Governador Albano de Oliveira, Taipa,

Macau, Macau, via the Microsoft Teams Meeting platform

. . . I am writing, to ensure compliance with all legal

requirements of the foreign jurisdiction.[33]

On April 6, 2023, the ALJ sua sponte issued an Order Requesting Position of

the Administrator stating that Xia’s Certification of Compliance was facially

deficient and directing the Administrator to provide a position statement on the

legality of taking Xia’s testimony from Macau.34 The Administrator responded that

based on information received from a senior attorney at the Department of Justice

and because Xia failed to comply with the ALJ’s certification requirements, Xia

should not be allowed to testify remotely while in Macau.35 The ALJ issued the

order despite the fact his own research indicated that the depositions of Chinese

nationals are routinely permitted in Macau without objection or reprisal and that

parties to litigation often agree to hold depositions in Macau or another special

administrative region of China.

On April 12, 2023, the ALJ issued an Order Setting In-Person Hearing.

The ALJ held that Xia was unable to participate at the hearing at all because she:

(1) submitted a facially deficient certification; (2) failed to seek assistance with

providing foreign testimony or make travel plans to testify in the United States; and

Order Setting In-Person Hearing at 1 (ALJ Apr. 12, 2023).

Order Requesting Position of the Administrator at 1-2 (ALJ Apr. 6, 2023).

The Administrator’s Response to Court’s April 6, 2023 Order Requesting Position of

the Administrator at 1-2 (Apr. 10, 2023).

(3) failed to show good cause justifying her participation remotely.36 The ALJ

scheduled an in-person hearing for May 18, 2023.37

Prior to the hearing, the Administrator and Respondent submitted a Joint

Prehearing Statement while Xia submitted her own prehearing statement.38 At the

hearing, counsel for the Administrator and Respondent appeared and presented

opening arguments and the ALJ admitted evidence into the record. Xia was present

as “an observer” via telephone.39 She was not permitted to provide her own opening

statement or respond to the arguments, and she was not allowed to testify to

support her claims.

On July 28, 2023, the ALJ issued the D. & O. The ALJ first recognized the

two exceptions that end a company’s wage paying obligations: when a worker

experiences a period of nonproductive status due to conditions unrelated to their

employment and when there has been a bona fide termination of the employment

relationship.40 He then rejected the position of the Administrator and Respondent

that Respondent’s wage paying liability ended the day Xia left the United States,

finding “it conflates the two exceptions” when “the regulations present them as two

distinct concepts.”41

He further explained that “if liability ceased when the employee left the

country, the requirement that USCIS be notified immediately would be of negligible

importance” because there would be “no incentive” to notify USCIS if “liability was

cut-off.”42 In support of that position, the ALJ pointed out that Respondent did not

notify USCIS until the Administrator informed it of its obligation over one year

after Xia’s termination and four months after she left the United States. He thus

found the wage paying obligation ended the day Respondent notified USCIS about

the termination, April 7, 2021.

Order Setting In-Person Hearing at 1. On April 11, 2023, five days after the

deadline, Complainant filed a new Compliance Certificate. In this Compliance Certificate,

Complainant requested to testify remotely from Saipan, Northern Mariana Islands and

provided a similar statement that she complied with all legal requirements of the foreign

jurisdiction. The ALJ denied this Compliance Certificate because he found it “untimely.”

Order Setting In-Person Hearing at 2 n.3.

In a subsequent conference call, the Administrator and Respondent agreed to

conduct the hearing virtually because Xia would not be present in the United States and

the ALJ ruled that she could not testify. See D. & O. at 2.

D. & O. at 2.

Id.

Id. at 6.

Id.

The ALJ then found Xia’s lack of testimony fatal to several of her remaining

claims. He held that Xia’s green card fraud claim “can be summarily dismissed as

there [was] no testimony supporting” her allegations. Without her testimony

(among other things), the ALJ also held there was “no evidence” in the record for

her claims for fringe benefits, and he lowered the transportation cost the

Respondent had agreed to pay by $1,391.27. He thus ordered Respondent to pay Xia

$78,914.00 in back wages, accruing from February 25, 2020, through April 7, 2021

(the USCIS notification date), and $3,140.15 in transportation costs, plus interest.43

Xia timely filed a Petition for Review of the D. & O. with the Board generally

challenging the ALJ’s decision and specifically arguing that barring her from

testifying at her own hearing violated due process.

Neither the Administrator nor the Respondent filed a cross-appeal arguing

the portion of the ALJ’s order rejecting their contention Respondent’s wage paying

obligation ended when she left the country should be modified. Nor has either party

argued that position on appeal: Respondent instead contends the D. & O. should be

affirmed in its entirety; the Administrator has not appeared before us.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to review the ALJ’s decision pursuant to 20 C.F.R. §

655.845.44 Under the Administrative Procedure Act, the ARB, as the Secretary of

Labor’s designee, acts with “all the powers [the Secretary] would have in making

the initial decision . . . .”45 The ARB therefore has plenary power to review an ALJ’s

factual and legal conclusions de novo.46

The Board reviews an ALJ’s procedural rulings under an abuse of discretion

standard.47 An ALJ abuses their discretion if they: (1) base the decision on an error

Id. at 10-11.

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. 13,186 (Mar. 6, 2020).

5 U.S.C. § 557(b); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Macks USA, Inc.,

ARB No. 2022-0038, ALJ No. 2017-LCA-00013, slip op. at 7-8 (ARB Feb. 21, 2023).

Macks USA, Inc., ARB No. 2022-0038, slip op. at 8 (citing Mehra v. W. Va. Univ.,

ARB No. 2021-0056, ALJ No. 2017-LCA-00002, slip op. at 4 (ARB Dec. 21, 2021)).

Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v. Strates Shows, Inc., ARB No. 20150069, ALJ No. 2014-TNE-00016, slip op. at 3 (ARB Aug. 16, 2017) (citing Walia v. Veritas

Healthcare Sols., LLC, ARB No. 2014-0002, ALJ No. 2013-LCA-00005, slip op. at 5 (ARB

Feb. 27, 2015)).

of law or use the wrong legal standard; (2) base their decision on a clearly erroneous

factual finding; or (3) reach a conclusion that, though not necessarily the product of

a legal error of a clearly erroneous finding, cannot be located within the range of

permissible decisions.48

DISCUSSION

1. The ALJ abused his discretion by denying Xia the ability to participate

at the hearing without following binding precedent.

The ALJ ostensibly relied on the OALJ Rules of Practice and Procedure to

bar Xia’s testimony from mainland China and Macau. The relevant regulation he

cited, 29 C.F.R. § 18.81(c), states “For good cause and with appropriate safeguards,

the judge may permit a party to participate in an open hearing by contemporaneous

transmission from a different location.”49

The ALJ’s decision to bar Xia’s participation, however, did not actually relate

to any technical issue associated with testifying from a foreign location as might be

suggested by the text of the regulation. OALJ has for years routinely conducted

remote hearings and consistently allowed overseas testimony on the Microsoft

Teams platform. The ALJ, in fact, specifically acknowledged “we do a lot of foreign

cases [on Teams]” and that “[l]ast week I did two cases, one out of Peru and one out

of North Macedonia.”50 He reasoned “the way I see it,” Xia therefore would either

need to come to the United States for the hearing or testify “via Microsoft Teams

from outside of China[.]”51

The sole basis for the ALJ’s conclusion was his perception that Chinese law

categorically prohibits testimony from mainland China and that Xia had failed to

satisfy the extra-statutory conditions he had imposed to allow her to testify from

Macau. Unfortunately, in making those determinations, he ignored the framework a

U.S. tribunal must first follow under binding Supreme Court precedent prior to

enforcing a foreign blocking statute in U.S. litigation.

Broadly speaking, a blocking statute is a law in one jurisdiction intended to

prevent application in that jurisdiction of a law of a second jurisdiction. They often

purport to generally prohibit the transfer of information—including deposition and

Petitt v. Delta Air Lines, Inc., ARB No. 2019-0087, ALJ No. 2018-AIR-00041, slip op.

at 5 (ARB Aug 26, 2020) (quoting Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d

620, 627 (2d Cir. 2018)).

29 C.F.R. § 18.81(c).

February 6, 2023 Telephonic Status Hearing Transcript at 8.

Id. at 9-10.

trial testimony—for the purposes of litigation, and they often limit the means of

service of process of foreign discovery requests on citizens within a nation’s borders

to procedures contained in treaties such as the Hague Convention on Service of

Process.52

Foreign blocking statutes typically are framed in absolute terms. But U.S.

courts have been far from absolute regarding their enforcement in U.S. litigation.

Counter to the ALJ’s determination that the mere existence of a blocking statute

rendered Xia unable to participate and testify from China or Macau, the United

States Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct

for S. Dist. of Iowa long ago held that “[foreign blocking] statutes do not deprive an

American court of the power to order a party subject to its jurisdiction” to provide

testimony even if the testimony “may violate that statute.”53

The Aerospatiale Court established a straightforward procedure that must be

followed in deciding whether to enforce a foreign blocking statute or follow U.S. law.

Any party seeking enforcement of the blocking statute first bears the burden of

demonstrating that the foreign law bars the production of evidence or testimony at

issue.54 “In order to meet that burden, the party resisting discovery must provide

the Court with information of sufficient specificity to allow it to determine whether

the discovery sought is indeed prohibited by foreign law.”55 If the party resisting

discovery meets that initial burden, the court must then determine under the

particular circumstances of the case whether to order the production of evidence

despite it, with the ultimate burden remaining on the party resisting discovery.56

Since Aerospatiale, courts have frequently applied a five-factor test to steer

that determination.57 The Aerospatiale Court, however, expressly refused to

In re Anschuetz & Co., 754 F.2d 602, 614 n.29 (5th Cir. 1985).

Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482

U.S. 522, 544 n.29 (1987) (Aerospatiale).

Wultz v. Bank of China Ltd., 942 F. Supp. 2d 452, 460 (S.D.N.Y. 2013) (citing

Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 207 (E.D.N.Y. 2007)).

Wultz, 942 F. Supp. 2d at 460 (quoting Alfadda v. Fenn, 149 F.R.D. 28, 34 (S.D.N.Y.

1993)).

See, e.g., USCO S.p.A. v. ValuePart, Inc., No. 2:14-cv-02590-JPM-tmp, 2015 WL

11120573, at *2 (W.D. Tenn. Feb. 18, 2015) (“A party which seeks the application of the

Hague Evidence Convention procedures rather than the Federal Rules of Civil Procedure

bears the burden of persuading the trial court of the necessity of proceeding pursuant to the

Hague Evidence Convention.”) (internal citation omitted).

Most courts consider the following five factors when evaluating whether to order the

production of evidence or apply a foreign blocking statute: (1) the importance to the

investigation or litigation of the documents or other information requested; (2) the degree of

“articulate specific rules to guide [that] delicate task.”58 Rather, it instructed lower

courts to adjudicate conflicts based on their “knowledge of the case and of the claims

and interests of the parties and the governments whose statutes and policies they

invoke.”59 While at first blush it may seem counterintuitive, a seemingly

overwhelming majority of courts since Aerospatiale have since ordered parties (and

nonparties) to violate foreign law and produce evidence for use in U.S. litigation—

often in more intrusive circumstances than those at issue here.

Courts have, for example, consistently ordered parties who have not initiated

the suit to violate blocking statutes.60 Courts have also held that individuals can

waive the application of blocking statutes and service requirements either

voluntarily through contract or involuntarily through conduct.61 And courts have

even ordered non-parties to litigation to produce discovery under the threat of

sanction in violation of their own country’s banking laws.62

specificity of the request; (3) whether the information originated in the United States;

(4) the availability of alternative means of securing the information; and (5) the extent to

which noncompliance with the request would undermine important interests of the United

States, or compliance with the request would undermine the important interests of the

state where the information is located. Aerospatiale, 482 U.S. at 544 n.28; see, e.g. Linde v.

Arab Bank, PLC, 463 F. Supp. 2d 310, 314-15 (E.D.N.Y. 2006) (citing RESTATEMENT

(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 442(1)(c)) (1987).

Aerospatiale, 482 U.S. at 546.

Id.

See, e.g., Munoz v. China Expert Tech., Inc., No. 07 Civ. 10531 (AKH), 2011 WL

5346323, at *3 (S.D.N.Y. Nov. 7, 2011) (ordering discovery despite the Chinese blocking

statute); Sofaer Glob. Hedge Fund v. Brightpoint, Inc., No. 1:09-CV-01191-TWP-DML, 2010

WL 4701419, at *5 (S.D. Ind. Nov. 12, 2010) (ordering discovery despite a French blocking

statute); Gucci Am., Inc. v. Curveal Fashion, No. 09 Civ. 8458 (RJS) (THK), 2010 WL

808639, at *8 (S.D.N.Y. Mar. 8, 2010) (ordering discovery despite a Malaysian blocking

statute).

See, e.g., Image Linen Servs., Inc. v. Ecolab, Inc., No. 5:09-cv-149-Oc-10GRJ, 2011

WL 862226, at *4 (M.D. Fla. Mar. 10, 2011) (potential trial witness agreed to “waive the

formalities of the Hague Convention.”); Boss Mfg. Co. v. Hugo Boss AG, No. 97 Civ. 8495

(SHS) (MHD), 1999 WL 20828, at *1 (S.D.N.Y. Jan. 13, 1999) (“[D]efendant reports that the

witness will waive the applicability of the Hague Convention[.]”); Cooper Indus., Inc. v.

British Aerospace, Inc., 102 F.R.D. 918, 918-19 (S.D.N.Y. 1994) (defendant waived right to

protection from discovery requests through its conduct).

See, e.g., Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1478-79 (9th

Cir. 1992) (affirming order of production notwithstanding Chinese secrecy laws); Motorola

Credit Corp. v. Uzan, 73 F.Supp.3d 397, 403 (S.D.N.Y. 2014) (ordering banks in France, the

United Arab Emirates, and Jordan to produce documents in violation of their secrecy laws);

Brit. Int’l Ins. Co. v. Seguros La Republica, S.A., No. 90 Civ. 2370 (JFK) (FM), 2000 WL

713057, at *10-11 (S.D.N.Y. June 2, 2000) (declining to defer to Mexican bank secrecy laws).

Indeed, one commentator documented that in the first twenty-five years after

Aerospatiale, U.S. courts considered whether to prospectively order (rather than to

simply permit) at least forty-two individual violations of foreign blocking statutes.

Courts affirmatively ordered parties to violate the foreign country’s law in thirtyseven of those instances.63 In each, the relevant foreign blocking provided for both

civil and criminal penalties.64

Here, by contrast, OALJ need not order Xia to violate Chinese law for her to

participate in a hearing on her own claim; she has expressed a willingness to testify

from either mainland China or Macau. With this backdrop in mind, two

fundamental interests compel us to remand this case to allow her to do so. Courts

most frequently have refused to enforce blocking statutes if doing so would:

(1) cause no serious foreign state interest to be undermined; and (2) not constitute

an undue hardship on litigants.65 Both factors strongly favor allowing Xia’s

testimony in this case.

First, following U.S. law instead of the Hague Convention procedures in these

circumstances does not undermine any serious Chinese interest. Respondent, the

ALJ, and the Administrator have all failed to demonstrate that China has ever

prohibited the testimony of a Chinese national seeking compensation under a U.S.

statute. Nor have the parties in this case identified any instance where any other

nation has enforced a blocking statute against its own citizen’s attempt to assert

their rights.

Instead, the cases cited by the ALJ rely on Article 277 of the Chinese Civil

Procedure Law.66 Article 277 is a general civil statute broadly designed to protect

M.J. Hoda, The Aérospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes

and What Foreign States Can Do About It, 106 CALIF 231, 234 (2018) (citing Gary B. Born

and Peter B. Rutledge, International Civil Litigation in American Courts 972 (5th ed.

2011)).

Id.

See Sylejmani v. Flour Conops, Ltd., BRB No. 2022-0259, ALJ No. 2020-LDA-02274,

slip op. at 10 (BRB May 26, 2023) (citing Linde v. Arab Bank, PLC, 706 F.3d 92, 114 (2d

Cir. 2013) (“The record . . . does not show that defendant or its employees have been

prosecuted for the Bank’s voluntary production in other cases.”); Chevron Corp. v. Donziger,

296 F.R.D. 168, 207 (S.D.N.Y. 2013) (“The record reveals that [the objecting entity] has

provided [similar] documents and materials throughout the history of this case when such

materials were thought helpful . . . Not once has he been prosecuted or subject to a penalty.

The absence of any such evidence weighs against a finding that a party faces hardship[.]”)).

Order on Four Pending Motions and Scheduling Hearing at 2. Article 277 is the

predecessor and identical to Article 284. U.S. courts have translated Article 277 as follows:

Chinese citizens from vexatious discovery and from providing information

generated within China’s borders.67 Neither concern is implicated here. On the

contrary, Xia strongly wishes to testify—and has shown a willingness to go to great

measures to do it—in an action she filed under a U.S. statute subject to U.S.

jurisdiction covering things that occurred exclusively to her while she was in the

United States. As one court has observed, there is a lack of “any evidence that

Article 277 has ever been enforced against discovery activities relating to U.S.

litigation” in these circumstances.68

With good reason. Far from protecting her interests, barring Xia from

participating in the hearing turns the purpose of Article 277 on its head by

preventing her from securing compensation for harms she allegedly suffered while

outside of China, while simultaneously shielding the foreign employer who allegedly

harmed her. We conclude from the purpose of Article 277 and China’s lack of

enforcement of it that China has no real interest in preventing Xia’s testimony from

mainland China or Macau.69

Request for and to provide judicial assistance shall be made

through channels prescribed by international treaties concluded

or acceded to by the People’s Republic of China; or in the absence

of such a treaty, shall be made through diplomatic channels.

A foreign embassy or consulate to the People’s Republic of China

may serve process on and investigate and collect evidence from

its citizens but shall not violate the laws of the People’s Republic

of China and shall not take compulsory measures.

Except for the circumstances in the preceding paragraph, no

foreign authority or individual shall, without permission from

the competent authorities of the People’s Republic of China,

serve process or conduct investigation and collection of evidence

within the territory of the People’s Republic of China.

Glam and Glitz Nail Design, Inc. v. Igel Beauty, LLC, No. SA CV 20-00088-JVS (DFMx),

2022 WL 17078947, at *1 (C.D. Cal. Sept. 30, 2022).

Inventus Power v. Shenzhen Ace Battery, 339 F.R.D. 487, 504 (N.D. Ill. 2021) (citing

TruePosition, Inc. v. LM Ericsson Telephone Co., No. 11-4574, 2012 WL 707012, at *5 (E.D.

Pa. Mar. 6, 2012)).

Id. at 6 (internal quotation omitted).

The four cases relied on by the ALJ do not change this calculation. China did not

enforce its blocking statute in any of them. Rather, in Jling, 2019 WL 1441130, at *11, the

court struck a deposition that had already taken place in mainland China—without any

indication China objected to it—and without balancing the factors mandated by

Aerospatiale. Similarly, Glam, 2022 WL 17078947, relied primarily on Jling with very little

[footnote continued on next page]

Second, prohibiting Xia’s testimony has created enormous hardship for her.

Xia’s testimony is fundamental. As the ALJ recognized, she alone witnessed many

of the key events in this matter, and he explicitly informed her that “if you want to

present your case, you’re going to have to testify about certain things that happened

because only you have knowledge from your point of view about those things.”70

Similarly, Respondent’s counsel remarked “this is a case where the credibility of

witnesses is of tantamount importance” and “I think there’s some very real

substantive due process concerns if we’re not allowed to conduct the hearing in

person[.]”71 These warnings were not merely speculative; they materialized when

the ALJ summarily denied Xia’s green card claim outright based on the lack of

testimony to support it.72

[footnote continued from previous page]

discussion while at the same time acknowledging that another court applying Aerospatiale

ordered a deposition to take place in mainland China. Similarly, Wang v. Hull, No. C181220RSL, 2020 WL 4734930, at *1 (W.D. Wash. June 22, 2020) also ignored Aerospatiale,

baldly referring to “U.S. caselaw,” “Article 277,” and “the State Department’s Advisory”

before summarily ordering a deposition take place in Macau, among other possible places.

Not to be undone, Su v. Sotheby’s Inc., No. 17-CV-4577 (VEC), 2019 WL 4053917, at *3

(S.D.N.Y. Aug. 28, 2019) refers to the same general State Department advisory, does not

mention Aerospatiale, and simply concludes “as the record stands today, there is a nonnegligible risk that swearing an oath and answering deposition questions, even those posed

remotely, could violate Chinese law—an issue that Plaintiffs have failed to address in

proposing their alternative.” Determining whether something might violate Chinese law,

however, is only the first step of the Aerospatiale analysis.

Moreover, the State Department website advisory that all of these cases (and the

ALJ) rely on merely links China’s Declarations and Reservations to the Hague Convention

before admitting (in all caps no less) that it “is provided for general information only,” and

“may not be accurate in a specific case,” before just as emphatically concluding “questions

involving interpretation of specific foreign laws [therefore] should be addressed to the

appropriate foreign authorities or foreign counsel.” U.S. DEP’T OF STATE, BUREAU OF

CONSULAR AFFAIRS, CHINA JUDICIAL ASSISTANCE INFORMATION, https://

travel.state.gov/content/travel/en/legal/Judicial-Assistance-CountryInformation/China.html (all capitals omitted).

February 6, 2023 Telephonic Status Hearing Transcript at 8.

November 30, 2022 Telephone Conference Transcript at 6.

The critical nature of Xia’s testimony weighs heavily in her favor of allowing her to

testify under the Aerospatiale factors. See, e.g., Luminati Networks Ltd. v. Teso LT,

No. 2:19-CV-00395-JRG, 2020 WL 6815153, at *1-2 (E.D. Tex. Oct. 28, 2020) (weighing

Aerospatiale factors, determining no alternative means of securing requested information,

and granting requestor’s motion to obtain deposition); Triumph Aerostructures, LLC v.

Comau, Inc., No. 3:14-cv-2329-L, 2015 WL 5502625, at *5-16 (N.D. Tex. Sept. 18, 2015)

(weighing Aerospatiale factors, determining no alternative means of securing requested

Moreover, denying Xia’s fundamental right to participate in her own hearing

flatly contradicts U.S. law. Xia legitimately filed her claim seeking relief under the

INA subject to U.S. jurisdiction and U.S. enforcement. Doing so entitled her to have

her claim adjudicated in accordance with the Act and its accompanying regulations.

That involves providing all parties an opportunity to be heard in a meaningful

manner and at a meaningful time, including the ability to participate at hearings

and to present their respective cases by submitting evidence on the relevant issues,

rebuttal evidence, and cross-examining witnesses.73

Conversely, allowing her testimony from China creates only an extremely

speculative, hypothetical risk for the other litigants (and the ALJ). China has been

a signatory to the Hague Convention since 1991 with limitations on discovery from

the beginning. No evidence in the record suggests that China has in those thirtythree years ever sanctioned foreigners for taking testimony from mainland China,

let alone foreigners who never set foot in the country. Had the ALJ taken Xia’s

testimony from Macau, which Xia had already agreed to, whatever wholly

speculative risk that might exist would have been eliminated entirely, as recognized

by the same cases the ALJ relied on (and by the ALJ himself) in proposing Macau

as an alternative.74

Finally, enforcing blocking statutes in these and similar circumstances

unquestionably undermines the enforcement of the INA, given the Act’s purpose

and the people it is designed to protect. One of the purposes in the enforcement of

the Act is to protect American workers’ interests by ensuring the benefits and

documents, and granting in part and denying in part requestor’s motion to obtain

documents from non-party); Linde, 463 F. Supp. 2d at 315 (weighing Aerospatiale factors

and determining “the discovery sought here is essential to the proof of plaintiffs’ case.

Without it, the plaintiffs cannot prove the defendant’s involvement in and knowledge of the

financial transactions that are the basis of the plaintiffs’ theory of liability.”), aff’d, 706 F.3d

92 (2d. Cir. 2017); Strauss, 249 F.R.D. at 441-43, 456 (weighing Aerospatiale factors,

determining discovery sought is vital to the litigation of plaintiffs’ claims and no other

means exist to obtain discovery, and ordering production of bank records and documents

relating to bank customer).

See 20 C.F.R. § 655.825; 29 C.F.R. §§ 18.21(a), 18.81(c); see also Matthews v.

Eldridge, 424 U.S. 319, 349 (1976); Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).

Order on Four Pending Motions and Scheduling Hearing at 2; see also Inventus

Power, 339 F.R.D. at 506-07 (finding that depositions can lawfully proceed in Macau and

permitting them to take place there); Wang, 2020 WL 4734930, at *1 (authorizing remote

testimony from a place like Macau); Dagen v. CFC Grp. Holdings Ltd., No. 00 Civ. 5682,

2003 WL 22533425, at *2 (S.D.N.Y. Nov. 7, 2003) (permitting testimony by telephone of

witnesses based in Hong Kong); Homedics-USA, Inc. v. Yejen Indus., Ltd., No. 05-70102,

2007 WL 9700635, at *2 (E.D. Mich. June 15, 2007) (noting “that telephonic depositions are

permissible in Hong Kong, as they are in the United States.”).

protections provided to U.S. workers are extended to similarly-situated alien

workers to prevent a race to the bottom in the relevant labor market.75 U.S. Courts

have long recognized U.S. interests in enforcing U.S. law present a high bar for

foreign blocking statutes to overcome.76

We thus hold that by not applying Aerospatiale before barring Xia’s

testimony, the ALJ abused his discretion, and that Aerospatiale further favors

enforcing U.S. law rather than going through Hague Conventions process to

arrange her testimony from mainland China. Because the ALJ’s error was not

harmless, we need not weigh whether it rises to the level of a due process violation

as Xia claims.77 Moreover, even if we did not view this as a pure error of law and

instead viewed it as a mixed question of law and fact, we would still come to the

same conclusion under our plenary standard of review.78

We therefore vacate the ALJ’s findings concerning Xia’s green card fraud

claim and requests for fringe benefits and reasonable transportation costs. The ALJ

is directed upon remand to take such further actions as necessary including

allowing her testimony from Macau or another agreed upon location without the

ALJ’s conditions and certifications.79 Following the remote hearing, and in light of

Xia’s testimony, the ALJ shall reassess Xia’s green card fraud claim and requests

for fringe benefits and reasonable transportation costs.80

See 20 C.F.R. § 655.0(a)(3).

See, e.g., Reino De Espana v. Am. Bureau of Shipping, No. 03 CIV 3573 LTSRLE,

2005 WL 1813017, at *3-4 (S.D.N.Y. Aug. 1, 2005) (ordering discovery over government of

Spain’s objection and finding that under Aerospatiale “a privilege that is asserted pursuant

to foreign law does not apply in this forum of its own force” and that the United States has

a “substantial interest in fully and fairly adjudicating matters before its courts.”) (internal

citations and quotation omitted).

See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (an error is not harmless if it could

have made a difference in the outcome of an issue).

Macks USA, Inc., ARB No. 2022-0038, slip op. at 8 (citing Mehra, ARB No. 20210056, slip op. at 4).

We reiterate that Xia is not limited to providing testimony from Macau but

specifically mention it here because she had previously agreed to do so. If Xia is no longer

able to travel to Macau, the ALJ shall work with Xia to find a suitable location consistent

with this decision.

See, e.g., Cabinets To Go, LLC v. Qingdao Haiyan Real Est. Grp., LLC, No. 3:21-civ00711, 2023 WL 3922640, at *6 (M.D. Tenn. May 30, 2023) (holding under Aerospatiale that

the FRCP rather than Hague Convention applied to Chinese nationals in China opposed to

discovery and ordering they come to the United States for depositions despite the risk of

civil and criminal penalties because “speculative interests” in ‘“potentially’ violating a

Chinese law[] do not outweigh the interests of the United States[.]”) (emphasis added).

2. The ALJ erred in determining that Respondent effected a bona fide

termination.

An employer seeking to hire a temporary worker under the H-1B program

must commit to paying the prospective employee wages for the length of the LCA.81

The regulations provide two exceptions to an employer’s wage-paying obligation.

The first exception occurs when an H-1B worker “experiences a period of

nonproductive status due to conditions unrelated to employment which take the

nonimmigrant away from [their] duties at [their] voluntary request and

convenience.”82 The second exception—at issue in the present appeal—applies when

there has been a “bona fide termination of the employment relationship.”83

The applicable regulation provides:

Payment need not be made if there has been a bona fide

termination of the employment relationship. DHS

regulations require the employer to notify the DHS that

the employment relationship has been terminated so that

the petition is canceled . . ., and require the employer to

provide the employee with payment for transportation

home under certain circumstances.[84]

The Board has held that a bona fide termination occurs when the employer:

(1) gives notice of the termination to the worker; (2) gives notice to the Department

of Homeland Security (USCIS); and (3) under certain circumstances, provides the

non-immigrant with payment for transportation home.85 If an employer discharges

the employee but does not make a bona fide termination, “its obligation to pay [the

employee] the ‘actual wage’ continue[s] until the expiration of [the employee’s]

authorized period of employment.”86

In the present case, the ALJ determined that Respondent effected a bona fide

termination on April 7, 2021, and he extended its wage paying obligation through

that date under the second exception, rejecting the position of the Respondent and

20 C.F.R. §§ 655.731(c)(1), (c)(7)(i).

Id. at § 655.731(c)(7)(ii).

Id.

Manoharan, ARB No. 2021-0060, slip op. at 10 (citations omitted); see 20 C.F.R.

§ 655.731(c)(7)(ii).

Manoharan, ARB No. 2021-0060, slip op. at 12 (citing Mao v. Nasser Eng’g &

Computing Servs., ARB No. 2006-0121, ALJ No. 2005-LCA-00036, slip op. at 10 (ARB Nov.

26, 2008)).

the Administrator that the wage paying obligation ended when Xia left the country

under the first exception.87 As an initial matter, we agree entirely with the ALJ’s

conclusion that the previous position of the Respondent and the Administrator

conflates the two exceptions and we affirm it on the merits and because it is

unchallenged on appeal.

On appeal, Xia argues Respondent failed to satisfy the three mandatory

elements to effect a valid bona fide termination.88 Specifically, Xia claims that

Respondent: (1) provided no credible proof it notified her of the termination in

February 2020; (2) failed to notify USCIS until April 2021; and (3) never paid for

her transportation back to China.89

Respondent met the first two requirements. Respondent notified Xia it

terminated her employment during an in-person meeting on February 24, 2020, and

the termination was memorialized by a letter left on her desk that same day.90 The

record contains: (1) a sworn declaration from Respondent’s president that it decided

to terminate on February 20, 2020; (2) the February 24, 2020 termination letter;

and (3) the termination letter’s metadata, which verifies that the document was

created and last modified on February 20, 2020.91 Additionally, Xia’s actions

following February 24 indicate that she received notice she was no longer employed

by Respondent. Xia never returned to work at Respondent’s office and later, applied

for unemployment benefits with the Texas Workforce Commission.92

Regarding the second requirement, Respondent notified USCIS on April 7,

2021, that it had terminated Complainant on February 24, 2020.93

As to the third requirement, however, it is undisputed that Respondent did

not pay for Xia’s return transportation costs to China.94 Instead, the ALJ found that

Respondent satisfied this requirement because “Respondent made a good faith

attempt to provide Xia with transportation costs in the February 2020 termination

letter.”95 The ALJ reasoned this effort qualified as a “good faith attempt” because:

D. & O. at 8.

Opening Brief of Appellant (Comp. Br.) at 18-21.

Id. at 19-20.

D. & O. at 5; Joint Exhibit (JX) 21.

D. & O. at 5; JX-28, JX-31.

D. & O. at 5; JX-27.

D. & O. at 6; JX-9.

D. & O. at 7.

Id.

(1) Xia left the letter on her desk which deprived her of important information that

would have allowed Respondent to comply with the regulations; (2) the letter

contained an offer to pay for return transportation costs;96 and (3) “Xia remained in

the United States for nine months after she was terminated indicating she did not

have the intention to immediately leave[,]” and thus, it was “not reasonable to

expect an employer to pay for return transportation costs when it does not know

when or whether the employee is leaving the county or what those costs amount

to.”97

We disagree. Although the ALJ correctly identified good faith exceptions to

an employer’s obligation to pay for travel expenses to effectuate a bona fide

termination,98 we find under our plenary review of the facts and law that

Respondent did not establish a good faith exception in this case. Rather, it acted in

bad faith by disregarding its regulatory burdens throughout the termination

process, including not legitimately offering to pay her travel expenses.99

The exceptions to the obligation to pay for travel expenses are contingent on

an employer’s good faith attempt to comply with the law or an employee’s change to

another lawful status.100 The Board has examined an employer’s good faith attempt

Id. In his D. & O., the ALJ distinguished the Board’s decision in Jinna v. MPRSoft,

Inc., because in his view, Respondent provided Complainant with information about how to

receive her transportation costs, while in Jinna, the employer notified the employee that

transportation costs would be provided but did not indicate how to obtain the costs. Jinna v.

MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039, slip op. at 8 n.4 (ARB Apr.

15, 2020). As further discussed below, the Board disagrees.

D. & O. at 7.

Id.

Although the remaining analysis focuses on an employer’s burden to pay for return

transportation costs and exceptions to pay for these costs, we note Respondent waited

nearly fourteen months to comply with the second regulatory requirement, notifying USCIS

of the termination, which further exemplifies Respondent’s disregard for its regulatory

burdens.

The present case does not involve an employee’s change to another lawful status.

However, we note the following cases alleviating the employer of its burden to provide for

the reasonable transportation costs when an employee changes to another lawful status:

Puri v. Univ. of Ala. Huntsville, ARB No. 2013-0022, ALJ Nos. 2008-LCA-00038, 2012-LCA00010 (ARB Sept. 17, 2014) (holding payment of return transportation costs was not

necessary to effect a bona fide termination where employee married a United States citizen

and employer knew they did not want return transportation to their country of origin);

Batyrbekov v. Barclay’s Capital, ARB No. 2013-0013, ALJ No. 2011-LCA-00025 (ARB July

16, 2014) (holding payment of return transportation costs was not necessary to effect a bona

fide termination because H1B employee secured USCIS approval for change of employer).

100

to comply with the law in Baiju v. Fifth Ave. Comm.,101 Adm’r, Wage & Hour Div.,

U.S. Dep’t of Lab. v. Univ. of Miami,102 and Childs v. DimensionalMechanics, Inc.103

In Baiju and Univ. of Miami, the employer offered to pay return transportation

costs to their former employee but the employee did not accept the offer.104 In

Childs, the employer made repeated attempts to contact the employee to pay for

return transportation costs but never received a response from the employee.105

Comparatively, Respondent informed Xia that she was “eligible to receive

transportation costs to return abroad” via the termination letter, which it knew Xia

did not open and left on her desk.106 And even if she had read it, it did not satisfy

Respondent’s obligation to pay her transportation costs.

First, the termination letter only notified Xia that she could receive

transportation costs, which were contingent on Xia’s response. At no time did

Respondent produce an actual check or airplane ticket that Xia could have accepted

or denied. Nor did Respondent simply say if she did not reply in the window it

provided, reasonable return costs would be included in her final check. Rather,

counter to the ALJ, we find the language in the termination letter—and the failure

to pay transportation costs—analogous to the situation in Jinna v. MPRSoft, Inc.

There, an employer e-mailed its employee stating that “H1B will be terminated and

fligh [sic] back tickets will be provided with effective date of 2/7/2017.”107 The Board

noted that “stating return flights ‘will be provided’ does not constitute proof of

actual payment of reasonable transportation cost for [the employee’s] return to his

home country.’”108

So too here. In both scenarios, the employers only notified the employees that

they were eligible for return transportation costs or would receive transportation

tickets; there were no formal offers made to pay for return transportation costs,

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

Mar. 30, 2012).

101

Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Univ. of Miami, ARB Nos. 20100090, -0093, ALJ No. 2009-LCA-00026 (ARB Dec. 20, 2011).

102

Childs v. DimensionalMechanics, Inc., ARB No. 2021-0001, ALJ No. 2017-LCA00008 (ARB Sept. 30, 2021).

103

Baiju, ARB No. 2010-0094, slip op. at 9; Univ. of Miami, ARB Nos. 2010-0090, -0093,

slip op. at 9 (“University offered return transportation (plus $5,000.00 additional for moving

costs) to [the employee].”).

104

105

Childs, ARB No. 2021-0001, slip op. at 7.

106

D. & O. at 3.

107

Jinna v. MPRSoft, Inc., ALJ No. 2018-LCA-00039, slip op. at 14 (ALJ July 16, 2019).

108

Jinna, ARB No. 2019-0070, slip op. at 8 n.4.

actual payments made, or tickets purchased on the employees’ behalf as compared

to the attempts made in Baiju, Univ. of Miami, and Childs.

Second, the information provided in Complainant’s termination letter was

conditioned on an arbitrary and unreasonable deadline. The termination letter

states, “[y]ou are also eligible to receive transportation costs to return abroad.

Please notify [Respondent] of your desire to do this by March 1, 2020.”109 The

termination letter was left on Xia’s desk on February 24, 2020, six days before the

deadline. The regulations do not authorize employers to limit their liability for

reasonable costs of return transportation by imposing rapidly expiring deadlines on

terminated employees.110

Third, the regulatory burden to pay for return transportation costs—or to

demonstrate that a good faith effort was made to pay those costs—remains on the

employer, it is not transferred to the employee through arbitrary deadlines.111 Even

if Xia remained unaware of Respondent’s invalid 6-day deadline by refusing to open

her termination letter to avail herself of the fleeting offer to pay her transportation

costs, Respondent should have made additional attempts to pay for Xia’s return

transportation costs to fulfill its regulatory obligation. This is especially true when,

as was the case here, Respondent knew that Xia was not in possession of the

termination letter since it remained unopened on her desk after her termination.112

Finally, Xia requested payment for her return transportation costs on

October 27, 2020, long before Respondent notified USCIS in April 2021 of her

termination.113 Yet Respondent did not tender payment or respond to Xia’s request

in any manner. Rather, it simply ignored her request.114

The ALJ created an argument to relieve Respondent of its burden to pay

return transportation costs, stating that while he was “not sure why [Respondent]

did not tender payment at that time” he could speculate [Respondent] mistakenly

believed it was no longer under any obligation to [pay] because Xia did not timely

request [payment] pursuant to the termination letter.”115 Again, we disagree.

109

D. & O. at 3.

110

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

111

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

112

D. & O. at 3; JX-13, JX-28.

113

JX-27.

114

D. & O. at 3.

115

Id. at 7 n.8.

Although Xia waited eight months before requesting reimbursement for

transportation costs from Respondent, that fact alone does not excuse an employer’s

regulatory obligations to pay for such costs. In this case, it is impossible to

reasonably argue that Respondent had a good faith belief that it was excused from

paying Xia’s transportation costs at a time when it had yet to meet its obligation to

notify USCIS that Xia had been terminated. And even if Respondent had made such

an argument, its failure to notify USCIS meant that at the time Xia requested

payment of her return travel costs she was still in possession of a valid visa; thus,

any uncertainty about the timing of her departure to China was due to

Respondent’s own disregard for its regulatory obligations. Under those

circumstances, we would not have found an 8-month delay in Xia’s return to China

sufficient to absolve Respondent of its obligations under the law. Furthermore, if

Respondent mistakenly believed it was no longer under any obligation to pay for

reasonable transportation costs because Xia delayed in making her request,

“ignorance of the law or mistake of law is no defense . . . [and] is deeply rooted in

the American legal system.”116

Respondent was obligated to pay for return transportation costs following

Xia’s termination. In limited circumstances an employer may demonstrate that it

was relieved of that obligation through a showing of either a good faith attempt to

make payment or a good faith reason why no payment was owing. Respondent has

failed to carry its burden to show that it paid, made a good faith attempt to pay, or

demonstrated that it was not obligated to pay for Xia’s transportation costs.

Accordingly, we reverse the ALJ’s finding that Respondent effectuated a bona

fide termination. Thus, Respondent owes Xia back wages from February 24, 2020,

through October 2, 2022, the authorized period of employment, plus interest.117

OFCCP v. WMS Sols., ARB No. 2020-0057, ALJ No. 2015-OFC-00009, slip op. at 10

(ARB Mar. 8, 2023) (quoting Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 646 (2015)).

116

Xia filed a Motion to Request Front Pay and Other Compensations on May 1, 2024.

Xia requested front pay “from the date of the trial onward until the court comes to a

decision,” emotional distress fees, breach of contract damages, back pay, fringe benefits,

and legal fees. The Board denies Xia’s Motion to Request Front Pay and Other

Compensations.

117

First, the Board is only authorized to provide specific remedies under the INA and

its applicable regulations. See 20 C.F.R. § 655.815 (noting the Administrator may prescribe

any remedies, including the amount of back wages assessed, amount of any civil money

penalties assessed, and other remedies assessed). Second, any requests for additional

compensation should have been raised to the ALJ. We decline to consider these new

requests and arguments six months after the briefing deadline. See Bagri v. Erection &

Welding Contractors, LLC, ARB No. 2020-0033, ALJ No. 2020-LCA-00003, slip op. at 2 n.5

CONCLUSION

We REVERSE the ALJ’s finding that Respondent effected a bona fide

termination. We REMAND the case to the ALJ (1) to enter judgment on back

wages for Xia consistent with this decision and (2) for further proceedings to

reassess Xia’s green card fraud claim, requests for fringe benefits, and reasonable

transportation costs.

SO ORDERED.

____________________________________

ANGELA W. THOMPSON

Administrative Appeals Judge

____________________________________

JONATHAN ROLFE

Administrative Appeals Judge

(ARB Jan. 29, 2021) (noting the ARB declines to consider arguments that a party raises for

the first time on appeal); see also Frantz v. Hoselton Auto. Grp., ARB Nos. 2021-0050, -0051,

-0052, ALJ No. 2018-MAP-00003, slip op. at 10-11 n.72 (ARB Nov. 17, 2023) (noting the

ARB does not consider arguments made for the first time in reply briefs). Third, as to the

legal fees request, Xia alleges that she paid $3,000.00 for legal consultation fees. No

attorney filed a Notice of Appearance before the OALJ or Board on behalf of Xia.

Additionally, Xia did not attach a receipt or proof of payment of the alleged legal fees to the

motion. Instead, the only exhibit attached to the motion appears to list of other costs

incurred, internet phone fees, international roaming charge fees, U.S. visa application fees,

U.S. Embassy transportation fees, and Hong Kong and Macao entry permit visa fees.

Given that the Board has remanded this matter to the ALJ, Xia will be entitled to

back wages from February 24, 2020, to October 2, 2022, plus interest, and potentially

additional compensations (for her green card fraud claim and requests for fringe benefits

and reasonable transportation costs) as determined by the ALJ following the remote

evidentiary hearing.

CERTIFICATE OF SERVICE

ARB-2023-0046 Ellen Xia v. Lina Ramey (Case No: 2022-LCA-00013)

I certify that the parties below were served this day.

10/07/2024

(DATE)

Andrew J Broadaway

1607 West Avenue

Austin, TX 78701

--Electronic

Ellen Xia

12484 Abrams RD

Dallas, TX 75243

--Electronic

Hon. Timothy J. McGrath

United States Department of Labor

Office of Administrative Law Judges

O'Neill Federal Building - Room 411, 10 Causeway

Street

Boston, MA 02222

Matthew Paul Sallusti

525 S. Griffin St., Suite 501

Dallas, TX 75202

--Certified

Mehron Peter Azarmehr

2720 Bee Caves Road

Austin, TX 78746

--Certified

Mia Terrell

525 Griffin Street

Suite 501

Dallas, TX 75238

--Certified

Thomas O. Shepherd, Jr., Esq.

Clerk of the Appellate Boards

Office of the Solicitor, Division of Fair Labor

Standards

200 Constitution Ave, NW

Room N-2716

Washington, DC 20210

--Electronic

U.S. Department of Labor, Office of Administrative

Law Judges

200 Constitution Avenue, N.W.

Room S-4325

Washington, DC 20210

--Electronic

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.