Petition for Writ of Certiorari — Arvind Gupta, Petitioner v. Marty Walsh, Secretary, Department of Labor, et al.

Supreme Court briefMay 19, 2022

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No. 21-

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Supreme Court of tfje 33mteb H>tate£

ARVIND GUPTA, pro se

Petitioner,

MARTIN J. WALSH, in his official capacity as

Secretary of the U. S. Department of Labor,

and,

Compunnel Software Group, Inc.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Dated: May 17, 2022

ARVIND GUPTA, pro se

209 W 29th St. #6227

New York, NY 10001

Tel: (917) 675-2439

E: arvgup@gmail.com

Petitioner

QUESTION PRESENTED FOR REVIEW

The question presented is:

Whether employers can have legally enforceable

private settlement agreement with the

nonimmigrant worker to pay less than the wages

required under the ‘INA’.

To provide context to the question presented the text of

8 XJ.S.C. § 1182 (n)(l)(A)(i)-(ii) is reproduced below:

No alien may be admitted or provided status as an

H-1B nonimmigrant in an occupational classification

unless the employer has filed with the Secretary of

Labor an application stating the following:

(A) The employer—

(i) is offering and will offer during the period of

authorized employment to aliens admitted or

provided status as an H-1B nonimmigrant

wages that are at least—

(I) the actual wage level paid by the

employer to all other individuals with

similar experience and qualifications for

the specific employment in question, or

(II) the prevailing wage level for the

occupational classification in the area of

employment,

whichever is greater, based on the best

information available as of the time of filing

the application, and

(ii) will provide working conditions for such a

nonimmigrant that will not adversely affect the

working conditions of workers similarly

employed.

Ill

PARTIES TO THE PROCEEDING

Petitioner Arvind Gupta, pro se is a citizen of

India. He worked as a nonimmigrant worker under

the H-1B work authorization program of the

Immigration and Nationality Act, 1956 as amended,

(1NA5) with Compunnel Software Group, Inc.

beginning in February 2007.

Respondent Honorable Martin J. Walsh is

sued in his official capacity as the Secretary of the

U.S. Department of Labor. He is responsible for

the supervision and management of all decisions

within the U.S. Department of Labor.

Founded in 1989 Respondent Compunnel

Software Group, Inc. is a leading information

technology consulting firm with offices in USA, UK

and other European countries, and India. It has head

office in Plainsboro, New Jersey.

RELATED PROCEEDINGS

I. Compunnel, DOL Case #1531643

Administrator (Wage-Hour). Determination

including Summary of Violations and

Remedies entered May 31, 2011.

(reproduced as Appendix G, at 104a - 109a)

2. Gupta v. Compunnel, ALJ No. 2011-LCA-045

Office of Administrative Law Judges (OALJ),

New Jersey, Decision and Order entered

February 1, 2012.

3. Gupta v. Compunnel, ALJ No. 2011-LCA-045,

Office of Administrative Law Judges (OALJ),

New Jersey, Order [Denying Reconsideration]

entered March 7, 2012.

4. Gupta v. Compunnel; ARB No. 12-049,

Administrative Review Board (ARB),

Washington, DC. Decision and Order of

Remand entered May 29, 2014.

(201.4 WL 2536869)

(reproduced as Appendix F, at 57a- 103a)

5. Compunnel v. U.S. DOL, et al, No. 14-2195,

CJ.S. Court of Appeals for the Second Circuit,

Order [Granting Compunnel’s motion to

withdraw appeal] entered June 30, 2014.

6. Compunnel v. Gupta and Perez,

No. 14-cv-4790 (SAS), U.S. District Court for

the Southern District of New York, Order

[dismissing appeal] entered October 22, 2014.

7. Compunnel v. Gupta and Perez, No. 14-cv4790 (SAS), U.S. District Court for the South.

District of New York, Opinion and Order

entered March 17, 2015 (2015 WL 1224298)

8. Compunnel v. Gupta and Perez,

No. 14-cv-4790 (SAS), U.S. District Court for

the Southern District of New York,

Judgment entered March 19, 2015.

9. Compunnel v. Gupta and Perez,

No. 14-cv-4790 (SAS), U.S. District Court for

the South. District of New York, Memorandum

Opinion and Order [Denying Reconsideration]

entered April 13, 2015. (2015 WL 1808628)

10. Gupta v. Compunnel, ALJ No. 2011-LCA-045

Office of Administrative Law Judges (OALJ),

New Jersey, Final Order Approving the

Parties’ Settlement Agreement entered

March 11, 2016.

(reproduced as Appendix E, at 53a - 56a)

W, Gupta v. Compunnel, ARB No. 16-056,

Administrative Review Board (ARB),

Washington, DC. Final Decision and Order

entered April 29, 2016. (2016 WL 2892927)

(reproduced as Appendix D, at 45a - 52a)

12. Compunnel v. Gupta and Perez, No. 1.4-cv4790 (RA), U.S. District Court for the

Southern District of New York, Order

[Denying Compunnel’s motion to dismiss]

entered Sept. 1, 2017. (2017 WL 11514590)

13. Compunnel u. Gupta and Perez, No. 14-cv4790 (RA), U.S. District Court for the

Southern District of New York. Opinion

and Order entered Sept. 30, 2018.

(2018 WL 4757941)

(reproduced as Appendix B, at 10a - 42a)

14. Compunnel v. Gupta and Perez, No. 14-cv4790 (RA), U.S. District Court for the

Southern District of New York.

Judgment entered September 30, 2018.

(reproduced as Appendix C, at 43a - 44a)

15. Compunnel v. Gupta and Perez, No. 14-cv4790 (RA), U.S. District Court for the

Southern District of New York. Memorandum

Vll

Opinion and Order [Denying Reconsideration]

entered May 20, 2019. (2019 WL 2174085)

(reproduced as Appendix I, at 112a - 121.a)

16. Compunnel Software Group, Inc. v. Gupta et

al, No. 19-1761-cv, U.S. Court of Appeals for

the Second Circuit. Summary Order entered

September 20, 2021.

(859 Fed. Appx. 596, 2021 WL 4256843)

(reproduced as Appendix A, at la - 9a)

17. Compunnel Software Group, Inc. v. Gupta et

al, No. 19-1761-cv, U. S. Court of Appeals for

the Second Circuit. Order [Denying

Rehearing] entered December 21, 2021.

(reproduced as Appendix II, at 110a - Ilia)

Vlll

TABLE OF CONTENTS

QUESTION PRESENTED FOR

REVIEW

PARTIES TO THE

PROCEEDING

RELATED PROCEEDINGS

TABLE OF CONTENTS

Vlll

APPENDIX TABLE OF

CONTENTS

TABLE OF AUTHORITIES

Xll

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS

AND REGULATIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE PETITION

Second Circuit’s decision in

this case is in conflict with

the law of other circuits.

II.

Administrative Review

Board (ARB) decision in

this case is in conflict with

prior decisions of the

agency

III. Under ‘INA5 the agency and

federal court lack

jurisdiction to enforce a

private settlement

agreement

CONCLUSION

APPENDIX TABLE OF CONTENTS

Appendix A

No. 19-1761, Summary

Order, U. S. Court of

Appeals for the Second

Circuit, Sept. 20, 2021

Appendix B

No. 14-cv-4790 (RA)

Opinion and Order,

U. S. District Court

(SDNY, Sept. 30, 2018)

10a

Appendix C

No. 14-cv-4790 (RA)

Judgment, U. S. District

Court (SDNY, Sept. 30, 2018)

43a

Appendix D

ARB Case No. 16-056

Final Decision and Order,

Administrative Review

Board, April 29, 2016

45a

Appendix E

ALJ Case No. 201.1-LCA00045, Final Order

Approving the Parties’

Settlement Agreement,

(ALJ, March 11, 2016)

Office of Administrative Law

Judges, New Jersey

53a

Appendix F

ARB Case No. 12-049

Decision and Order of

Remand, Administrative

Review Board, May 29, 2014

57a

Appendix G

DOL Reference No.: 1531643

Administrator’s (Wage-Hour)

Determination including

Summary of Violations and

Remedies, May 31, 2011

104a

Appendix H

No. 19-1761, Order [Denying

rehearing], U. S. Court of

Appeals for the Second

Circuit, Dec. 21, 2021

110a

Appendix I

No. 14-cv-4790 (RA)

Memorandum Opinion and

Order (Denying Recon

sideration], U. S. District

Court (SDNY, May 20, 2019)

112a

Appendix J

Statutory Provisions and

Regulations Involved

122a

Xll

TABLE OF AUTHORITIES

Cases:

Administrator v. Kutty, ARB No.

03-022, ALJ Nos. 2001-LCA-010

through 2001-LCA-025, slip op.,

at 6, 2005 WL 1359123 at *4

(ARB May 31, 2005)

Administrator v. Piism

Enterprises, ARB No. 01-080,

ALJ No. 2001-LCA-008, slip op.

at 5, 2003 WL 22855211 at *3

(ARB Nov. 25, 2003)

Administrator u. Wings Digital

Corp., ALJ No. 2004-LCA-030,

slip op., at 16, 2005 WL 774014

at *12 (ALJ March 21, 2005)

Administrator v. XCEL

Solutions, ARB No. 12-076,

ALJ No. 2011-LCA-016, slip op.

at 9 ,.2014 WL 3886827 at *6

(ARB July 16, 2014)

Alexander v. Sandoval,

532 U. S. 275, 284 (2001)

Arizona v. United States,

567 U. S. 387,.409 (2012)

Xlll

Batyrbekov v. Barclays, ARB No.

13-013, ALJ No. 2011-LCA-025,

slip op., at 17, 2014 WL 3886828

at *11 (ARB, July 16, 2014)

Bormann v. AT&T Comm.,

875 F.2d 399, at 401-402

(2d Cir. 1989)

Brooklyn Savings Bank v.

O'Neil, 324 U. S. 697, 704-05,

65 S. Ct. 895, 900-01 (1945)

Caserta v. Home Lines Agency,

273 F.2d 943, 946 (2d Cir. 1959)

Chao v. Russell P. Le Frois

Builder, Inc, 291 F.3d 219,

227-229 (2d Cir. 2002)

Chelladurai v. Infinite Solutions,

ARB No. 03-072, ALJ No. 2003LCA-004, slip op., at 8 n. 7,

2006 WL 1151942 at 8 n. 7

(ARB April 26, 2006)

Cyberworld Enter. Techs., Inc. v.

Napolitano, 602 F.3d 189, 198

(3d Cir. 2010)

Da Silva v. Musso,

53 N.Y.2d 543, 550 (1981)

XJV

Genesis Healthcare u. Symczyk

569 U. S. 66, 72 (2013)

Hoffman Plastic Compounds,

Inc. v. NLRB, •

535 U. S. 137 (2002)

Hoffman v. Fuel Economy,

No. 1987-ERA-033, Order

Denying Request to Reconsider,

at 3 n. 1, 1989 WL 549890 at *2

n. 1 (Sec’y Aug. 4, 1989)

Jain u. Infohahn Technologies,

ARB No. 08-077, ALJ No. 2008LCA-008, slip op., at 12 n. 87,

2009 WL 3614509 at *6 n. 87

(ARB October 30, 2009)

24-25

Kaiser Steel Corp. u. Mullins,

455 U. S. 72, 77 (1982)

Kersten v. LaGard, ARB No.

06-111, ALJ No. 2005-LCA-017,

at 8 n. 23, 2008 WL 4820115 at

*7 n. 23 (ARB Oct. 17, 2008)

Kokkonen v. Guardian Life Ins.

Co. of Am.,

511U.S. 375, 382 (1994)

Kutty v. DOL, 764 F.3d 540, 544,

2014 WL 4085824 at *2

(6th Cir. August 20, 2014)

Kutty v. USDOL, No. 05-cv-510,

2011 WL 3664476, at *9

(E.D. Tenn. Aug. 19, 2011)

Macktal v. Secretary of Labor,

923 F.2d 1150, 1153

(5th Cir. 1991)

Manoharan u. HCL America,

ARB No. 2020-007, ALJ No.

2018-LCA-029, slip op., at 7

2020 WL 8182910 at *4

(ARB December 21, 2020)

Matter of I-Corp., Adopted

Decision 2017-02, slip op., at 3

2017 WL 1397675 at *3

(AAO April 12, 2017)

Matter of Simeio Solutions, LLC,

26 I & N Dec. 542, 547,

2015 WL 1632652 at *4

(AAO 2015)

Mikami v. Administrator (WHD)

and A. G. Schmidt, ARB No.

13-005, ALJ No. 2012-LCA-025,

slip op., at 3, 2014 WL 3385879

at *1 (ARB June 16, 2014)

New York State Dept, of Social

Servs. v. Dublino,

413 U. S. 405, 419-420 (1973)

XVI

Norfolk S. Ry. Co. v. Perez,

778 F.3d 507, 512 (6th Cir. 2015)

Oubre v. Entergy Ops.,

522 U. S. 422, 428 (1998)

14,

19, 20

Pampillonia v. RJR Nabisco,

Inc., 138 F.3d 459 (2d Cir. 1998)

Patel v. Boghra, 369 Fed. Appx.

722, 724 (7th Cir. 2010)

Pegasus Consulting Group v.

Admin. Rev. Bd.,

No. 3:05-cv-05161-FLW, slip op.

at 37, 2008 WL 920072 at *19

(D.N.J. March 31, 2008)

Powell v. Omnicom,

497 F.3d 124 (2d Cir. 2007)

Shaikh v. Vision Systems, ARB

No. 04-094, ALJ No. 2004-LCA005, 2005 WL 1794425 at *2

(ARB July 27, 2005)

Skluth v. United Merchants &

Mfrs., Inc., 559 N.Y.S.2d 280

(1st Dep’t 1990)

15-16

Talukdar v. Dep’t of Veterans

Affs., ARB No. 04-100, ALJ No.

2002-LCA-025, 2007 WL 352434,

at *2 (ARB Jan. 31, 2007)

XVII

Union Pacific R. Co. v.

Locomotive Engineers,

558 U. S. 67, 71 (2009)

United States v. Bedi, et al.,

15 F.4th 222, 228-229, n.45

2021 WL 4468410 at *5

(2d Cir. Sept. 30, 2021)

United States v. Johnson,

529 U.S. 53, 58 (2000)

United States v. Vonn,

535 U.S. 55, 64 (2002)

Walton v. United Consumers

Club, Inc., 786 F.2d 303, 307

(7th Cir. 1986)

Statutes:

5 U.S.C. § 706(2)

2,11

5 U.S.C. § 706(2)(A)

8 U.S.C. § 1101(a)(15)(H)(i)(b)

8 U.S.C. § 1182 (n)

8 U.S.C. § 1182 (n)(l)(A)

3, 5

8 U.S.C. § 1182 (n)(l)(A)(i)

XV111

8 U.S.C. § 1182 (n)(2)(A)

3,8

8 U.S.C. § 1182 (n)(2)(C)(iv)

8 U.S.C. § 1182 (n)(2)(C)(vii)(I)

3, 5, 6

8 U.S.C. § 1182 (n)(2)(C)(vii)(IV)

3, 6,

8 U.S.C. § 1182 (n)(2)(D)

3, 10

8 U.S.C. § 1182 (n)(4)(C)

3,7

28 U.S.C. § 1254(1)

Regulations:

8 C.F.R. § 214.2(h)(2)(i)(E)

3, 7,

20 C.F.R. § 655.700(a)(3)

20 C.F.R. § 655.700(b)(l)-(3)

3,4

20 C.F.R. § 655.705(a)

3,4

20 C.F.R. § 655.705(c)

3, 5

20 C.F.R. § 655.715

20 C.F.R. § 655.731

9, 18

XIX

20 C.F.R. § 655.731(a)(l)-(2)

20 C.F.R. § 655.731(c)(l)-(2)

3, 5

20 C.F.R. § 655.731(c)(7)(i)

3, 5

20 C.F.R. § 655.731(c)(7)(ii)

3, 6,

20 C.F.R. § 655.740(c)

3, 19

20 C.F.R. § 655.750(b)(3)

3, 5

20 C.F.R. § 655.800(a)

3, 17

20 C.F.R. § 655.801(a)

3, 9

20 C.F.R. § 655.806

20 C.F.R. § 655.810(a)

3, 10

20 C.F.R. § 655.815(c)(1)

3, 23

20 C.F.R. § 655.815(c)(3)

3, 27

20 C.F.R. § 655.820

20 C.F.R. § 655.820(b)

3, 23

20 C.F.R. § 655.830(b)

3, 18

20 C.F.R. § 655.845

20 C.F.R. § 655.850

3, 8

29 C.F.R. § 18.10(a)

3, 25

29 C.F.R. § 18.12(b)

3, 25,

29 C.F.R. § 18.30(b)(1)

3, 18

Other Authorities:

65 Fed. Reg. 80110, 80171

2000 WL 1852810

(December 20, 2000)

85 Fed. Reg. 13186, 13187,

2020 WL 1065013

(March 6, 2020)

Petitioner Arvind Gupta, pro se, respectfully

prays that a writ of certiorari issue to review and to

vacate and reverse the ‘Summary Order’ of the

United States Court of Appeals for the Second

Circuit entered in this proceeding on September 20,

2021, and the subsequent Order Denying Rehearing

dated December 21, 2021.

OPINIONS BELOW

The ‘Summary Order of the Second Circuit is

electronically reported at 859 Fed. Appx. 596, 2021

WL 4256843 and reproduced as Appendix A at la-9a.

The Second Circuit’s ‘Order [Denying Rehearing] is

reproduced as Appendix H at 110a-11 la.

The September 2018 ‘Opinion and Order’ of the

United States District Court for the Southern

District of New York is available at 2018 WL

4757941 and 2018 U.S. Dist. LEXIS 170187 and

reproduced as Appendix B at 24a-42a. The Judgment

is reproduced as Appendix C at 43a-44a The May

2019 ‘Opinion and Order’ [Denying Reconsideration]

of the United States District Court for the Southern

District of New York is available at 2019 WL

2174085 and 2019 U.S. Dist. LEXIS 84893 and

reproduced as Appendix I at 112a-121a.

ARB ‘Final Decision and Order’ dated April 29,

2016, in ARB Case No. 16-056, is available at 2016

WL 2892927, and is reproduced as Appendix D at

45a-52a. The Administrative Law Judge (ALJ) ‘Final

Order Approving the Parties’ Settlement Agreement’

dated March 11, 2016, is reproduced as Appendix E

at 53a-56a. ARB ‘Decision and Order of Remand’

dated May 29, 2014, in ARB Case No. 12-049, is

available at 2014 WL 2536869, and is reproduced as

Appendix F at 57a- 103a. Administrator (Wage-Hour)

Determination including Summary of Violations and

Remedies issued in DOL Case #1531643 dated May

31, 2011 is reproduced as Appendix G at 104a-109a.

JURISDICTION

Second Circuit ‘Summary Order’ was issued on

September 20, 2021. The petition for panel

rehearing, or, in the alternative, for rehearing e/i

banc was denied on December 21, 2021. Justice

Sotomayor extended the time to file a petition for

certiorari until May 20, 2022. (No. 21A507). The

court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED

The text of following statutes and regulatory

provisions involved in this petition is included as

Appendix J at 122a-144a.

5 U.S.C. § 706(2)

8 U.S.C. § 1182 (n)(l)(A)

8 U.S.C. § 1182 (h)(2)(A)

8 U.S.C. § 1182 (n)(2)(C)(iv)

8 U.S.C. § 1182 (n)(2)(C)(vii)(I)

8 U.S.C. § 1182 (n)(2)(C)(vii)(IV)

8 U.S.C. § 1182 (n)(2)(D)

8 U.S.C. § 1182 (n)(4)(C)

8 C.F.R. § 214.2(h)(2)(i)(E)

20 C.F.R. § 655.700(b)(l)-(3)

20 C.F.R. § 655.705(a), (c)

20 C.F.R. § 655.731(c)(1)-(2)

20 C.F.R. § 655.731(c)(7)(i)

20 C.F.R. § 655.731(c)(7)(ii)

20 C.F.R. § 655.740(c)

20 C.F.R. § 655.750(b)(3)

20 C.F.R. § 655.800(a)

20 C.F.R. § 655.801(a)

20 C.F.R. § 655.810(a)

20 C.F.R. § 655.815(c)(1)

20 C.F.R. § 655.815(c)(3)

20 C.F.R. § 655.820(b)

20 C.F.R. § 655.830(b)

20 C.F.R. § 655.850

29 C.F.R. § 18.10(a)

29 C.F.R. § 18.12(b)

29 C.F.R. § 18.30(b)(1)

The text of DOL’s implementing regulations

20 C.F.R. §§ 655.700 - 855 (Subpart H and I) is

available on the internet at:

https://www.ecfr.gov/current/title-20/chapterV/pa.rt-655

STATEMENT OF THE CASE

The H-1B work authorization program of the

Immigration and Nationality Act, 1956 as amended

(‘INA’) is a voluntary program that allows the

temporary employment of “nonimmigrants” to fill

“specialized” jobs in the United States. 8 U.S.C.

§§ 1101(a)(15)(H)(i)(b), 1182(n).

At least three federal agencies are involved in

authorizing H-1B employment of nonimmigrant

workers in United States. The Labor Condition

Application (LCA) is approved by Employment and

Training Administration (ETA) a division of U. S.

Department of Labor. 20 C.F.R. §§ 655.700(b)(1),

705(a). After the LCA is approved, the employer is

required to petition the U. S. Department of

Homeland Security (USCIS) on Form 1-129 to grant

H-1B work authorization for the nonimmigrant

worker. 20 C.F.R. § 655.700(b)(2) Once USCIS grants

the work authorization, the nonimmigrant can apply

for H-1B visa with the consular office of the U. S.

Department of State. 20 C.F.R. § 655.700(b)(3).

Private agreements inconsistent with the LCA

attestations are neither required nor recognized by

Government agencies under the H-1B program.

As part of the H-1B program, the employer

must pay the nonimmigrant a “required wage.” 8

U.S.C. § 1182(n)(l)(A); 20 C.F.R. §§ 655.705(c), 715,

731(a)(1), (2). Specifically, an employer who places an

H-1B employee “in nonproductive status due to a

decision by the employer (based on factors such as

lack of work), or due to the nonimmigrant’s lack of a

permit or license” must pay the employee full-time

wages for all nonproductive time. 8 U.S.C.

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

Under 20 C.F.R. § 655.750(b)(3), “An employer

shall comply with the “required wage rate” and

“prevailing working conditions” statements of its

labor condition application required under §§ 655.731

and 655.732 of this part, respectively, even if such

application is withdrawn, at any time H-1B

nonimmigrants are employed pursuant to the

application, unless the application is superseded by a

subsequent application which is certified by ETA.”

(emphasis added). 20 C.F.R. §§ 655.731(c)(l)-(2)

describes the “required wages”.

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

where wages must be paid. “If the H-1B nonimmigrant

is not performing work and is in a nonproductive

status due to a decision by the employer (e.g., because

of lack of assigned work), lack of a permit or license,

or any other reason except as specified in paragraph

(c)(7)(H) of this section, the employer is required to pay

the salaried employee the full pro-rata amount due,

(emphasis added)

See 20 C.F.R. § 655.731 (c)(7)(ii) Circumstances

where wages need not be paid. “If an H-1B

nonimmigrant experiences a period of nonproductive

status due to conditions unrelated to employment

which take the nonimmigrant away from his/her

duties at his/her voluntary request and convenience

(e.g., touring the U.S., caring for ill relative) or render

the nonimmigrant unable to work (e.g., maternity

leave automobile accident which temporarily

incapacitates the nonimmigrant), then the employer

shall not be obligated to pay the required wage rate

during that period,

Payment need not be made if

there has been a bona fide termination of the

employment relationship.”

A private agreement or release between the

employer and nonimmigrant worker is not a valid

reason for the employer to escape its statutory

obligation to pay the required wages. See, 8 U.S.C.

§§ 1182(n)(2)(C)(vii)(I), (IV). If there is material

change in terms and conditions of employment, then

employer is required to file a new H-1B petition with

USCIS with a current or new certified labor

condition application. See, 8 C.F.R. § 214.2(h)(2)(i)(E)

Petitioner Arvind Gupta entered into

employment with Compunnel in December 2006

under the H-1B nonimmigrant worker authorization

program of the ‘INA\ 8 U.S.C. § 1182(n)(4)(C)

Compunnel voluntarily submitted a Labor Condition

Application (“LCA”) to United States Department of

Labor (“DOL”) mentioning the period of employment

starting December 1, 2006, to November 30, 2009. In

the LCA the wage rate is mentioned as $20/hr. Based

on Compunnel’s H-1B petition that included the DOL

certified LCA, United States Citizenship and

Immigration Services (“USCIS”) authorized Gupta’s

period of employment up to April 30, 2009.

Gupta started working on fee producing

assignments for Compunnel in February 2007.

Compunnel started paying wages to Gupta @ $52/hr.

(actual wage rate) effective February 5, 2007. After

June 11, 2007, Gupta joined a new client project in

New York, NY, and Compunnel started paying wages

@ $60/hr. (actual wage rate) up to July 20, 2007. In

addition to actual wage rate of $60/hr. Compunnel

also paid Gupta cash bonus or similar compensation

(fringe benefit) @ $35/hr. On December 11, 2007,

Gupta started working on another project for

Compunnel in New Jersey that lasted until end of

March 2008. Compunnel paid wages to Gupta

@ $64/hr. for the period beginning December 11, 2007,

and up to March 31, 2008.

During Gupta’s employment with Compunnel

under the H-1B program and later, Compunnel

frequently violated its LCA attestations to pay the

required wage rate (higher of actual or prevailing

wage rate) to Gupta for both productive and

nonproductive periods of employment.

Under ‘1NA’ Gupta lacks private right of action

to directly prosecute Compunnel in the first instance.

His remedy is to file a complaint with Administrator

(Wage-Hour) and appeal with ALJ and ARB, if

necessary. 20 C.F.R. §§ 655.806, 820, 845. The final

decision of the agency can be appealed in federal court

for judicial review under Administrative Procedure

Act (APA). 20 C.F.R. § 655.850.

Gupta filed a timely complaint with U.S. DOL

in November 2008 for his wages and other claims.

8 U.S.C. § 1182(n)(2)(A). In December 2008 Gupta

also asked for his required wages from Compunnel. In

violation of 8 U.S.C. § 1182 (n)(2)(C)(iv) Compunnel

retaliated and sent Gupta overseas in travel status

and withdrew his H-1B petition by a back dated letter

sent to USCIS in February 2009.

On Gupta’s complaint and subsequent appeal

Administrator (Wage-Hour) and Administrative

Review Board (ARB) granted him back wages for

various periods of time.

After investigation, in May 2011 Administrator

(Wage-Hour) ordered Compunnel to pay back wages

to Gupta for certain periods of time and ordered

Compunnel to comply with the requirements of 20

C.F.R. § 655.731 in the future. Compunnel paid the

back wages per the Administrator’s Determination at

the required wage rate. Gupta appealed with ALJ and

later with ARB for additional periods of wage

violations by Compunnel and for interest on back pay.

By Order dated May 29, 2014, ARB found

Compunnel in violation of required

wage

requirements for additional periods of employment

and ordered the ALJ to calculate back wages due to

Gupta at least for the following periods,

(i)

(ii)

(iii)

February 3, 2007,

July 23, 2007 to December 10, 2007,

April 1, 2008 to April 30, 2009,

ARB ordered payment of interest on back pay

including Administrator’s back pay award. ARB also

ordered the ALJ to issue a new decision on Gupta’s

retaliation claim. 20 C.F.R. § 655.801(a).

The required wages under £INA’ (without

interest and benefits) for these periods, based on

actual wage rate, is about $193,792. 8 U.S.C. § 1182

(n)(2)(D); 20 C.F.R. § 655.810(a) providing that, “The

back wages or fringe benefits shall be equal to the

difference between the amount that should have been

paid and the amount that actually was paid to (or with

respect to) such nonimmigrant(s).” With interest and

benefits this amount will be even higher.

After ARB issued its decision, Compunnel filed

a petition for review in the Second Circuit, No.

14-2195 against the U. S. Secretary of Labor and

Gupta as the respondents. In June 2014 Compunnel

withdrew that petition and refiled it in the district

court (SDNY), Case No. 14-cv-4790 (SAS).

By Order dated October 22, 2014, the district

court (SDNY) dismissed Compunnel’s petition from

the ARB May 2014 decision and also dismissed some

of Gupta’s counter/cross claims that were based on

ARB decision and TNA\ The district court (SDNY0

remanded the case to the ALJ with directions to issue

a decision within 30 days. By Order dated March 17,

2015, the district court (SDNY) dismissed Gupta’s

state law counterclaims for breach of contract and

other counterclaims. By a subsequent Order dated

April 13, 2015, the district court (SDNY) denied

Gupta’s motion for altering, amending and/or

vacating judgment and also denied him leave to file

an amended complaint and add new claims.

While the computation of damages per ARB

order was in progress with the ALJ, in March 2016

Compunnel presented a disputed settlement

agreement with Gupta for $28,000 to the ALJ that is

denied by Gupta. (The dispute involved whether the

agreement covered claims only in India after Gupta

travelled to India in April 2009 or also that in the USA

during the H-1B employment period. The dispute over

the settlement agreement does not impact the legal

resolution of the question presented to this court

which is a matter of statutory interpretation.)

ALJ granted approval to the agreement,

dismissed Gupta’s claims and denied him relief even

though no joint motion for approval is in record and

the administrative record was already closed for new

issues and filings. As the prosecuting party, Gupta

never filed a motion to withdraw or dismiss his claims

with the ALJ. The consideration for the agreement

$28,000 is also in conflict with the mandatory TNA’

wage requirements that is at least $193,792 (plus

interest). Gupta appealed but by Order dated April 29,

2016, ARB declined to review the ALJ dismissal order.

Gupta petitioned for APA review of agency’s

decision in district court (SDNY). 5 U.S.C. § 706(2).

The administrative record is filed by the U.S.

Secretary of Labor at district court (SDNY) Dkt. #202.

In September 2018 the district court (SDNY) granted

summary judgment to the U.S. Secretary of Labor and

Compunnel on the basis of the disputed private

settlement agreement and denied Gupta’s motion for

partial summary judgment.

In May 2019 the district court (SDNY) denied

Gupta’s motion for reconsideration on the issue of

ALJ/ ARB jurisdiction, futility of remand proceedings

and conflict preemption with TNA’.

Gupta appealed the district court (SDNY)

Orders with the United States Court of Appeals for

the Second Circuit. By Summary Order dated Sept.

20, 2021, a Second Circuit panel affirmed the decision

of the district court (SDNY) and denied relief to

Gupta. By a subsequent order dated Dec. 21, 2021, the

court denied Gupta’s petition for rehearing. Second

Circuit issued its mandate on Jan. 24, 2022.

REASONS FOR GRANTING THE PETITION

Second Circuit’s decision in this case is

in conflict with the law of other circuits.

In its summary order the Second Circuit

affirmed the judgment of the district court (SDNY)

finding the private settlement agreement in violation

of‘INA’ valid and enforceable. This decision creates a

split with the Sixth and Seventh Circuit.

See, Kutty v. USDOL, No. 05-cv-510, 2011 WL

3664476, at *9 (E.D. Tenn. Aug. 19, 2011) (H-1B

“wages [a]re set by statute, not by contract,”

“[r]egardless of [any] private contracts”); (.aff’d. Kutty

v. DOL, 764 F.3d 540, (6th Cir. Aug. 20, 2014); See

also, Id. at 64 F.3d 544, 2014 WL 4085824 at *2 (“In

order to employ H-1B nonimmigrants, employers

must complete and file with the DOL a Labor

Condition Application (LCA) that provides for wagelevel guarantees, and have it certified by the DOL. 20

C.F.R. § 655.700(a)(3)”). See also, Patel u. Boghra, 369

Fed. Appx. 722, 724 (7th Cir. 2010) (Illinois does not

enforce agreements to violate federal or state law; it

leaves the parties where it found them.).

In the Third Circuit the district court (DNJ)

rejected the use of private release and agreements by

H-1B employers to escape ‘INA’ statutory wage

requirements. See, Pegasus Consulting Group v.

Admin. Rev. Bd., No. 3:05-cv-05161-FLW, slip op. at

37, 2008 WL 920072 at *19 (D.N.J. March 31, 2008)

(Court affirming ARB award of required wages and

finding of willful violations despite H-1B employer

obtaining a private release of wage claims from its

nonimmigrant workers)

Also, 65 Fed. Reg. 80110, 80171, (Dec. 20, 2000)

(“Nor will the Department relieve an employer from

liability simply because the employee agreed to

periods without pay in the employment contract.”)

Other circuits that have considered the issue of

private settlement and release in administrative

cases have required the involvement of U.S. Secretary

of Labor as a precondition to finding an agreement

valid and enforceable. See, Macktal v. Secretary of

Labor, 923 F.2d 1150, 1153 (5th Cir. 1991) (case under

ERA-Energy Reorganization Act) (Once a complaint is

filed, the statutory language authorizes only three

options: (1) an order granting relief; (2) an order

denying relief; or (3) a consensual settlement

involving all three parties.) (emphasis added); Walton

v. United Consumers Club, Inc., 786 F.2d 303, 307 (7th

Cir. 1986) (FLSA case) (the court held that the mere

cashing of a check issued under a DOL-supervised

settlement did not release the employees’ claims

where the DOL did not send out the applicable release

forms.”). Here DOL neither supervised the settlement

nor sent any applicable release form to Gupta.

In Oubre v. Entergy Ops., 522 U. S. 422, 428

(1998) also this court held that "the release cannot bar

the ADEA [statutory] claim because it does not

conform to the statute”. Also, Kaiser Steel Corp. v.

Mullins, 455 U. S. 72, 77 (1982) (“[0]ur cases leave no

doubt that illegal promises will not be enforced in

cases controlled by the federal law.”); New York State

Dept, of Social Servs. v. Dublino, 413 U. S. 405, 419420 (1973) (“We cannot interpret federal statutes to

negate their own stated purposes.”)

Under APA 5 U.S.C. § 706(2)(A) a reviewing

court is required to hold unlawful and set aside agency

action, findings, and conclusions found to be “not in

accordance with law” and

it is beyond dispute that

a federal statute ordinarily is a “provision of law”

whereas a private contract is not.”) Norfolk S. Ry. Co.

v. Perez, 778 F.3d 507, 512 (6th Cir. 2015) The district

court (SDNY) and Second Circuit orders that upheld

agency’s approval of Compunnel’s private agreement

in violation of ‘INA’ statute and regulations are not

consistent with APA standard of review.

The cases cited in the Second Circuit ‘Summary

Order’ and the district court opinion do not arise

under the ‘INA’ H-1B employment program. Powell u.

Omnicom, 497 F.3d 124 (2d Cir. 2007) arises under

Title VII and ADEA. Da Silva v. Musso, 53 N.Y.2d

543, 550 (1981) is a case for specific performance of a

binder for purchase of an apartment building.

Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459 (2d

Cir. 1998) involves a general release signed by a U. S

citizen and does not concern any H-1B wage claims

and APA review. Skluth v. United. Merchants & Mfrs.,

Inc., 559 N.Y.S.2d 280 (1st Dep’t 1990), a case cited in

Pampillonia. involves claims of age discrimination.

Second Circuit decisions rejecting private

settlement of wage claims in FLSA cases are

instructive for ‘INA’ cases. Caserta v. Home Lines

Agency, 273 F.2d 943, 946 (2d Cir. 1959) (“Appellant's

argument of estoppel ignores that this case lies in an

area where agreements and other acts that would

normally have controlling legal significance are

overcome by Congressional policy.”); Bormann u.

AT&T Comm., 875 F.2d 399, at 401-402 (2d Cir. 1989),.

cert, denied, 493 U.S. 924 (1989) (analogizing

settlement of ADEA claims to Title VII but

distinguishing from private settlement of FLSA

claims that are precluded). For similarity of FLSA

wage protection requirements with the ‘INA’ wage

protection requirements for nonimmigrant workers

see, Matter of 1-Corp., Adopted Decision 2017-02, slip

op., at 3, 2017 WL 1397675 at *3 (AAO April 12, 2017)

(“While wage laws are not expressly restated in the

Act, it is implied that authorized employment must

comply with both the Act and the FLSA. Only when it

sought to exceed FLSA protections has Congress

included specific wage-related provisions in the Act”)

In a decision issued in a different case the

Second Circuit acknowledged that H-1B. employers

are required to pay the statutory wages regardless of

private agreements with employees. United States v.

Bedi, et al, 15 F.4th 222, 228, 2021 WL 4468410 at *5

(2d Cir. Sept. 30, 2021) (“We do not dispute the

premise of either argument: .... federal law requires

H-1B employers to pay the required wage regardless

of whether the employee signs an agreement

accepting lower compensation.”) (citing at 15 F.4th

229 n. 45, 8 U.S.C. § 1182(n)(l)(A)(i) requiring

employer to certify that it will pay the required wage).

Gupta cited this decision in his petition for rehearing,

but his petition was denied.

Here the alleged private settlement agreement

is signed only by Compunnel and Gupta. The

Administrator (Wage-Hour) did not enter into any

settlement with Compunnel for the violations found

by the ARB, nor has the Administrator (Wage-Hour)

offered any settlement to Gupta for his claims. See 20

C.F.R. § 655.800(a)

the Administrator shall

perform all the Secretary’s investigative and

enforcement functions ...” (emphasis added);

Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d

189, 198 (3d Cir. 2010) (The Department of Labor's

enforcement of LCAs “vindicate [ s ]” rights that “are

of a ‘public’ nature, since [the Department] is acting

to protect the U.S. workforce from displacement by

[nonimmigrant visa] recipients and to enforce the

rules of the immigration system.”).

In violation of 20 C.F.R. §'655.830(b),

Compunnel did not serve the Administrator with

copies of any motion or private agreement at the time

of submitting the same to ALJ on March 10, 2016. In

violation of 29 C.F.R. § 18.30(b)(1) no certificate of

service accompanied Compunnel’s documents. No

motion to reopen the closed record was filed. The ALJ

accepted and approved Compunnel’s documents the

same day without observing the required procedures.

ALJ and ARB orders approving the private

agreement in violation of‘INA’ are also contrary to the

Administrator’s

Determination

that

ordered

Compunnel to comply with 20 C.F.R. § 655.731

(required wages) that had become the final decision of

the U.S. Secretary of Labor because neither Gupta nor

Compunnel appealed from this part of the

determination. Neither the ALJ, ARB or the federal

courts specifically modified or vacated this order of the

Administrator (Wage-Hour).

Under ‘INA’ Compunnel cannot legally settle or

release any claims privately because Gupta has no

authority to interpret or enforce TNA\ Alexander v.

Sandoval, 532 U. S. 275, 284 (2001) (“A Congress that

intends the statute to be enforced through a private

cause

of action

intends

the

authoritative

interpretation of the statute to be so enforced as well.”

(citations omitted)). Here Gupta lacks private right of

action against Compunnel for its ‘INA’ violations and

unlike U.S. Secretary of Labor he lacks legal authority

to interpret the lINA’ or enforce the regulations.

The purely private agreement between

Compunnel and Gupta, in violation of ‘INA’ required

wage regulations, is insufficient to relieve Compunnel

of its wage obligation arising from the certified labor

condition application that is the basis of USCIS

approving Compunnel’s H-1B petition for Gupta’s

employment. 8 U.S.C. § 1182 (n)(2)(C)(vii)(IV); 20

C.F.R. §§ 655.731(c)(7)(ii), 655.740(c).

For the requirement to file a new or amended

H-1B petition with U. S. Department of Homeland

Security (USCIS) see, Matter of Simeio Solutions,

LLC, 26 I & N Dec. 542, 547, 2015 WL 1632652 at *4

(AAO 2015), “When there is a material change in the

terms and conditions of employment, the petitioner

must file an amended or new H-1B petition with the

corresponding LCA. 8 C.F.R. § 214.2(h)(2)(i)(E).”

Compunnel cannot rely on Gupta’s failure to

return the agreement money to justify its knowing

and willful violations of ‘INA’. See Oubre v. Entergy

Operations, Inc., 522 U. S. 422, 428 (1998) (ADEA

case) (“[T]he employer cannot invoke the employee’s

failure to tender back as a way of excusing its own

failure to comply.”) Gupta has, however, offered to

adjust the private payment, if necessary, from the

amount of H-1B wages owed by Compunnel because

Gupta is denied his statutory wages'for several years

and he lacks the means to repay the amount readily.

See Oubre 522 U. S. at 527, “In many instances a

discharged employee likely will have spent the

moneys received and will lack the means to tender

their return .... We ought not to open the door to an

evasion of the statute by this device.”

The statutory construction rule expressio uriius

esi exelusio alterius provides that the express mention

of one thing of a type may exclude others of that type.

United States v. Vonn, 535 U.S. 55. 64 (2002). Because

the ‘INA’ statute and regulations already provide the

limited exceptions when the Statutory wages are not

required to be paid, the agency and courts are not at

liberty to create more judge made exceptions. United,

States v. Johnson, 529 U.S. 53, 58 (2000) (“When

Congress provides exceptions in a statute, it does not

follow that courts have authority to create others. The

proper inference, and the one we adopt here, is that

Congress considered the issue of exceptions and, in

the end, limited the statute to the ones set forth.”)

ARB has found Compunnel in violation of

required wage obligations for various periods of time

and the required wage rate for these periods is set by

the ‘INA’ statute and regulations. Calculation of the

wages due and interest is a mathematical exercise

with no scope of any settlement for less than the

required wages in violation of‘INA’.

II. Administrative Review Board (ARB)

decision in this case is in conflict with

prior decisions of the agency

A number of agency cases support Gupta’s

litigation position including, Administrator v. Prism

Enterprises, ARB No. 01-080, ALJ No. 2001-LCA-008,

slip op., at 5, 2003 WL 22855211 at *3 (ARB Nov. 25,

2003) (“payment made by employer pursuant to the

terms of a voluntary agreement is separate and apart

from the H-1B wage requirements.”); Chelladurai v.

Infinite Sol, ARB No. 03-072, ALJ No. 2003-LCA-004,

slip op., at 8 n. 7, 2006 WL 1151942 at *8 n. 7 (ARB

April 26, 2006) (“It is, however, the representations

[H-1B employer] made to the United States

Government, not the expectations or agreement of the

parties, which are relevant here.”); Administrator v.

Wings Digital Corp., ALJ No. 2004-LCA-030, slip op.,

at 16, 2005 WL 774014 at *12 (ALJ March 21, 2005)

(finding that an employee was owed back wages when

the employer reduced the employee’s salary, with his

consent, to an amount below that which was listed on

the LCA); Administrator v. Kutty, ARB No. 03-022,

ALJ Nos. 2001-LCA-010 through 2001-LCA-025, slip

op., at 6, 2005 WL 1359123 at *4 (ARB May 31, 2005)

(rejecting employer argument based on private

agreements that were never submitted to DOL with

LCAs and enforcing LCA attestations for wages);

In the summary order (at n. 2) Second Circuit

has referred to the OALJ website for settlement cases.

However, the cases listed on the OALJ website are

those where the Administrator (Wage-Hour) or the

nonimmigrant worker(s) have entered into voluntary

settlement with the H-1B employer and then jointly

filed consent findings or motion to withdraw or

dismiss the claims. There is no case (except Gupta’s

two cases - this Compunnel and another case of

Headstrong) where the agency has enforced alleged

private settlement agreement that is submitted only

by the H-1B employer without the participation and

request of the nonimmigrant worker (as the

prosecuting party).

An instructive case is Shaikh v. Vision Systems

Group, ARB No. 04-094, ALJ No. 2004-LCA-005, 2005

WL 1794425 at *2 (ARB July 27, 2005) in which where

there was dispute about a private settlement

agreement, the H-1B employer filed its complaint and

enforced the release agreement in the state court

against the nonimmigrant worker. Only when the

nonimmigrant worker filed his letter with the Board

to withdraw his appeal did ARB dismiss the case.

Compunnel is found in violation of required

wage obligations by ARB and the party to prosecute

and to enter into any settlement with Compunnel, if

necessary, is the Administrator (Wage-Hour)

20 C.F.R. § 655.815(c)(1) (“... in the case of a finding

of violation(s) by an employer, [Administrator shall]

prescribe any remedies, ...”); Manoharan v. HCL

America, ARB No. 2020-007, ALJ No. 2018-LCA-029,

slip op., at 7, 2020 WL 8182910 at *4 (ARB Dec. 21,

2020) (“only the Administrator has the discretionary

power to prosecute claims under Subsection 2 [of 20

C.F.R. § 655.820(b)]”) (emphasis added); Mikami v.

Administrator (WHD) and A. G. Schmidt, ARB No.

13-005, ALJ No. 2012-LCA-025, slip op., at 3, 2014 WL

3385879 at *1 (ARB June 16, 2014) (Administrator

entered into settlement with the employer for

violations and informed the H-1B worker’s attorney).

See also, Brooklyn Savings Bank v. O'Neil, 324

U. S. 697, 704-05, 65 S. Ct. 895, 900-01 (1945) (“It has

been held in this and other courts that a statutory

right conferred on a private party, but affecting the

public interest, may not be waived or released if such

waiver or release contravenes the statutory policy.”)

In Hoffman Plastic Compounds, Inc. v. NLRB,

535 U. S. 137 (2002) this court concluded “that

allowing the [NLRB] Board to award backpay to

illegal aliens would unduly trench upon explicit

statutory prohibitions critical to federal immigration

policy, as expressed in IRCA." Id. at 151. The instant

case requires this court to prevent the opposite

situation where the ALJ and ARB are rewarding the

employer for its 1NA’ required wage violations and

denying back wages to a legal nonimmigrant worker

despite him succeeding in proving the wage violations

by the employer. Gupta worked legally with

Compunnel under the protection of TNA’ H-1B

program wage guarantees. Depriving Gupta of his

statutory wages because of an illegal private

agreement would trivialize immigration laws and

condone and encourage future violations of TNA’

required wage obligations by the employers. The ALJ,

ARB and federal court decisions to the contrary need

to be vacated or reversed.

Ill. Under TNA’ the agency and federal court

lack jurisdiction to enforce a private

settlement agreement

Several DOL cases have discussed lack of

jurisdiction of the agency over private agreements.

Kersten v. LaGard, ARB No. 06-111, ALJ No. 2005LCA-017, slip op., at 8 n. 23, 2008 WL 4820115 at *7

n. 23 (ARB Oct. 17, 2008) (“DOL’s jurisdiction under

the INA extends only to employment relationships

that arise under, or are terminated pursuant to, the

INA’s H-1B provisions.”); Jain v. Infobahn Tech., ARB

No. 08-077, ALJ No. 2008-LCA-008, slip op., at 12 n.

87, 2009 WL 3614509 at *6 n. 87 (ARB Oct. 30, 2009)

(“Private employment agreements are outside the

scope of the INA and are beyond our jurisdiction.”);

Administrator v. XCEL Sol., ARB No. 12-076, ALJ No.

2011-LCA-016, slip op., at 9, 2014 WL 3886827 at *6

(ARB July 16, 2014) (XCEL failed to point to any legal

authority empowering the Administrator or the DOL

to consider and resolve alleged breaches of a private

contract as potential offsets to XCEL’s wage

obligations under the INA.); Batyrbekov v. Barclays,

ARB No. 13-013, ALJ No. 2011-LCA-025, slip op., at

17, 2014 WL 3886828 at *11 (ARB JuL 16, 2014) (“The

separation agreement entered into by Batyrbekov and

Barclays constituted

a private

employment

agreement outside the scope of the INA.”).

Second Circuit cited 29 C.E.R. § 18.12(b) in

support for ALJ jurisdiction to dismiss the case. But

this is a procedural rule and not a jurisdiction

granting statute. Union Pacific R. Co. v. Locomotive

Engineers, 558 U. S. 67, 71 (2009), “Congress

authorized the [NRAB] Board to prescribe rules for

the presentation and processing of claims, ... but

Congress alone controls the [NRAB] Board’s

jurisdiction.”

29 C.F.R. § 18.10(a) (2015) states in part, “To

the extent that these rules may be inconsistent with a

governing statute, regulation, or executive order, the

latter controls. If a specific Department of Labor

regulation governs a proceeding, the provisions of that

regulation apply, and these rules apply to situations

not addressed in the governing regulation.”; also,

Hoffman v. Fuel Economy, No. 1987-ERA-033, Order

Denying Request to Reconsider, at 3 n. 1, 1989 WL

549890 at *2 n. 1 (Secy Aug. 4, 1989) (“The provisions

of the Rules of Practice and Procedure for

Administrative Hearings before the Office of

Administrative Law Judges, 29 C.F.R. Part 18 (1988),

upon which Respondents rely in part, do not apply

where they are inconsistent with specific statutes or

regulations. 29 C.F.R. § 18.1(a).”) The ‘INA’ statute

and regulations specifically require payment of

required wages from Compunnel once the violations

were found so a procedural rule like 29 C.F.R.

§ 18.12(b) is inapplicable to dismiss Gupta’s case.

The case of Talukdar v. Dept of Veterans Affs.,

ARB No. 04-100, AU No. 2002-LCA-025, 2007 WL

352434, at *2 (ARB Jan. 31, 2007) cited by the Second

Circuit is inapposite. There, as in all other settlement

cases, the parties Virdee (employee) and VAMC

(employer) settled their claims in federal court and

jointly represented to ARB that the action should be

dismissed. The parties had resolved their issues as

part of district court (North Dakota) Case No. 3:04-cv12 litigation. The ARB also discussed that the ALJ

may “permit negotiation of a settlement” “before

providing the initial decision in a INA case”. Here

prosecuting party Gupta never filed any motion to

dismiss or withdraw his claims with the ALJ after he

already prevailed before the ARB.

See, 85 Fed. Reg. 13186, 13187, 2020 WL

1065013 (March 6, 2020) (‘The Board [ARB] shall not

have jurisdiction to pass on the validity of any portion

of the Code of Federal Regulations that has been duly

promulgated by the Department of Labor and shall

observe the provisions thereof, where pertinent, in its

decisions. The Board also shall not have jurisdiction

to review decisions to deny or grant exemptions,

variations, and tolerances and does not have the

authority independently to take such actions.”).

Secretary’s Order 01-2020 delegating authority to

ARB does not grant jurisdiction to ARB to approve

private agreements in violation of ‘INA’. 85 Fed. Reg.

13187. There is no finding by the agency that the

private agreement is in compliance with ‘INA’.

Administrator’s (Wage-Hour) Determination

and Order for Compunnel to comply with 20 C.F.R.

§ 655.731 became a “final order” of the U.S. Secretary

of Labor because neither Gupta nor Compunnel

appealed from this part of the Determination. 20

C.F.R. § 655.815(c)(3); Genesis Healthcare v. Symczyk,

569 U. S. 66, 72 (2013) (“Acceptance of respondent’s

argument to the contrary now would alter the Court

of Appeals’ judgment, which is impermissible in the

absence of a cross-petition from respondent.”)

(citations omitted). Compunnel’s obligation to pay

required wages to Gupta for the period of violations

found by the ARB is not subject to private settlement,

and ALJ and ARB have no jurisdiction to issue orders

contrary to the portions of Administrator’s (WageHour) Determination that was not appealed by Gupta

(or Compunnel). Chao v. Russell P. Le Frois Builder,

Inc, 291 F.3d 219, 227-229 (2d Cir. 2002) (Commission

and courts lacks jurisdiction where the employer did

not timely contest the Secretary’s citation); (In sum,

we do not think that the Commission can “reconsider”

that which it is prevented by law from considering in

the first place.) (Id. at 229 n. 9)

See, Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 382 (1994) (“... [Enforcement of the

settlement agreement is for state courts, unless there

is some independent basis for federal jurisdiction.”)

Here the federal courts did not have jurisdiction to

enforce Compunnel’s alleged private agreement with

Gupta and their orders should be vacated or reversed.

Neither the district court (SDNY) or the Second

Circuit discussed how the district court (SDNY) could

exercise jurisdiction over Compunnel’s and U.S.

Secretary’ of Labor’s motion for summary judgment

that was based on a private settlement agreement.

Under Kokkonen (Id.) the ALJ and ARB also did not

have jurisdiction to dismiss Gupta’s ‘INA’ based

claims and deny him statutory relief based on

Compunnel’s allegation of a private settlement.

Arizona u. United States, 567 U. S. 387, 409

(2012) (“Policies pertaining to the entry of aliens and

their right to remain here are

. . entrusted

exclusively to Congress. . .”) So Compunnel as H-1B

employer is not at liberty to enter into private

settlement of its ‘INA’ violations with Gupta, a

nonimmigrant worker, and DOL and federal courts

have no jurisdiction to approve or enforce the same.

CONCLUSION

For the foregoing reasons, this petition for a

writ of certiorari should be granted and the Second

Circuit order below vacated and reversed.

Respectfully Submitted,

Dated: May 17, 2022

/s/ Arvind Gupta

Arvind Gupta, pro se

209 W 29th St. #6227

New York, NY 10001

Tel: (917) 675-2439

E: arvgup@gmail.com

Petitioner

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