labor lawAdivision of labor law center

A Cambridge, Massachusetts-based IT firm has agreed to pay $2.4 million in back wages to workers after a U.S. Department of Labor investigation.

Patni Computer Systems, Inc. agreed to pay an average of $3,953.87 to each of 607 non-immigrant employees following pressure from the federal government.

An investigation by the U.S. Labor Department’s Wage and Hour Division found that computer professionals employed under the H-1B visa program were being paid less than the amount required by law. This settlement covers wages earned between January 2004 and December 2005.

By law, companies cannot pay workers with an H-1B visa less than their American counterparts. The purpose here is two-fold. The law prevents the exploitation of immigrants by companies such as Patni, and it prevents the importation of cheap technical laborers, particularly in high-demand fields like the IT industry. 

“The department is committed to vigorously enforcing the H-1B provisions that guard against employers undercutting American workers by underpaying temporary foreign workers,” said Secretary of Labor Elaine L. Chao.

The H-1B visa program permits employers to temporarily hire foreign workers in professional occupations such as computer programmers, engineers, physicians and teachers.  These immigrants fill a demand for highly-trained workers in the U.S. However, H-1B workers must be paid at least the same wage rates as are paid to U.S. workers who perform the same type of work. In addition, they must earn the prevailing wages in the areas of intended employment.

This arrangement allows American employers to hire highly qualified candidates from outside the U.S. when they don’t have enough qualified candidates. However, the restrictions prevent the H-1B program from hurting American workers by eliminating unfair competition from abroad.

Such Foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy.  “These programs are generally designed to ensure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers,” according to  a U.S. Department of Labor publication.

While there are several federal agencies involved with granting permission for foreign workers to live and work in the United States, employers generally must first obtain certification through the U.S. Department of Labor. Certification may be granted in cases where it can be demonstrated that there are not enough qualified U.S. workers available or willing to perform the work. However, that work must be at wages that meet or exceed the prevailing wage for that occupation in the industry.

Very simply put, if a U.S. Computer Analyst normally earns $100,000 per year, a company cannot import a candidate and pay him or her only $40,000 per year. That is considered destructive both for the employee and for the U.S. labor market.

After a company is certified by the U.S. Department of Labor, the employer generally must petition the U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) for a visa on behalf of the foreign worker. Approval by DOL does not guarantee that the foreign worker will receive a visa. The applicant must also establish that they are admissible to the United States under provisions of the Immigration and Nationality Act (INA).

Several federal agencies are involved in issuing an H-1B visa. The U.S. Department of Labor’s Employment and Training Administration (or ETA) provides labor certifications to the employer. The Wage and Hour Division of the Employment Standards Administration (also known as ESA) at the Labor Department is responsible for investigating any misrepresentations or violations under the H-1B visa regulations. The ESA also investigates violations of the law regarding H1B1 and H-2A visas, as well as violations of the Fair Labor Standards Act.

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