In the convoluted world of H-1B non-agricultural temporary worker processing, this case stood out as a good example of the seamier side of hiring foreign workers. In Castellanos-Contreras, et al v. Decatur Hotels, LLC, Fifth Circuit case #07-30942 (July 21, 2009), the court ruled on a complaint filed by Castellanos-Contreras and two others that the Defendant, Decatur violated the Fair Labor Standards Act by paying them less than the minimum wage when Decatur refused to reimburse them for recruitment, transportation and visa fees that they incurred before relocating to the United States to work for Decatur.
The court held that the Fair Labor Standards Act (FLSA) did not require an employer to reimburse any of these expenses.
This is an important decision because it endorses the practice of employers to now seek the services of visa brokers who find and hire employees without the need to pay for any other concurrent costs. The foreign workers pay the fee to the recruitment companies to locate H-2B job opportunities, to guide the employee through the visa process and to arrange transportation to the United States. The guest workers pay between $3,000.00 and $5000.00 in recruitment, transportation and visa expenses before relocating to the United States. Obviously, this is a princely sum of money in most countries.
How will the foreign worker deal with this decision?
The answer is clear: Obtain a written contract which would be enforceable in a court of law in the United States for the employer or the referring agency to reimburse the worker for these expenses. However, keep in mind that the referring agency company need to be in the USA in order for any jurisdiction to attach to the company. Furthermore, if the employee obtains a judgment against the company, if the assets of the company are not in the USA, it will be hard if not impossible to collect the judgment from that recruitment company.
Again, this further underscores the fact that H-2, H-1B or any other non-immigrant work visa for which a prevailing wage must be paid cannot include the recruitment fees, visa fees or travel expenses as part of the prevailing wage being paid to the employee.
About the author:
I practice in the areas of immigration and small business law in Akron, Ohio. In addition to my law practice, I am also an adjunct (part-time) professor of immigration law at the University of Akron, School of Law (“Akron Law”). My busy and challenging immigration practice comprises cases from all areas of immigration including family, business, and student visas, employment, H-1b, Labor Certification, PERM, O-1, L-1, EB-1 and EB-2, as well as more specialized areas of practice such as asylum, deportation, removal, and federal and state court litigation. I work from the beginning to end of complex applications involving spouses of US Citizens and their immediate family. I am especially proud to represent clients in fiancé, marriage, and citizenship cases and bring their families to the USA. Likewise, I defend clients vigorously in deportation or removal cases and work hard to win their “green cards”. For your regular reference please bookmark my blog – The Law Offices of Farhad Sethna. Please give us your feedback and let us know if the information we presented was helpful.