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Could APEX Be Investigated For H-1B Fraud?
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January 04, 2010, 04:10 AM
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A recent eWeek article says it all: "H-1B Visa Enforcement to Increase in 2010".

USCIS officials intend to up the ante of verifying and investigating the validity of H-1B visa usage by companies. Immigration officials will ramp up law enforcement to help thwart fraud and quell political pressure that wants to severely limit H-1B visa usage.

Computerworld published an article in November that explains who is in charge of the investigations:

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications. Mayorkas` letter was released on Tuesday by Grassley.

So, could APEX be investigated for H-1B fraud? The answer is yes, if someone simply asks the Dept. of Labor to start an investigation. Both U.S. citizens and H-1B holders are eligible to file complaints to the Department of Labor.

Please, before reading further be sure to read and understand my Vdare article titled "H-1B Bodyshop vs. U.S. First Amendment: The Case Of "Tunnel Rat".

This the Dept. of Labor Wage and Hour Division has a web page with information about how to file a complaint .

Instructions for Form WH-4: H-1B Nonimmigrant Information
The information provided on this form will assist the Department of Labor in determining whether the named employer of H-1B nonimmigrants has committed a violation of provisions of the H-1B program.

To download the complaint form WH-4 just click the link provided on the complaint page. You will get a PDF formatted complaint form. There are various things that need to be filled out but one of the most interesting ones is Item #4 titled: "Description of Alleged Violation(s)".

Most of the boxes that can be selected are for complaints that only an H-1B worker at APEX would have the inside information required to make a valid complaint. However, there are a few choices that seemed to be put there for Americans — but the questions ask for information that only somebody at APEX would know. Like for instance, how would somebody outside the company know if LCAs are filed within a 90 day window when the DOL only makes LCAs available once every year? Lots of vague and difficult to define terms are used that provide ample squiggle room for companies to put the burden of proof on the plaintiff. Words and phrases such as "willful violator", "seeks to replace", "failed to inquire", and "intends" are used in such a way that the plaintiff would have to be a mind reader to prove.

The following are examples of the choices that are very H-1B centric:

(m) H-1B dependent/willful violator employer laid off U.S. worker(s) and has replaced or seeks to replace U.S. worker(s) with H-1B worker(s) within 90 days before or after filing H-1B visa petitions.

(n) H-1B dependent/willful violator employer placed H-1B workers(s) at another employer’s worksite where U.S. workers have been laid off, and /or has failed to inquire of the second employer whether it has or intends to lay-off U.S. worker(s) and replace them with H-1B worker(s).

(o) H-1B dependent/willful violator employer failed to recruit U.S. worker(s) for jobs for which H-1B worker(s) are sought.

Fortunately there is an "Other" option which allows the plaintiff to write their own complaint. That one might be most applicable if you feel that APEX Technology Group violated other types of H-1B regulations besides the ones listed. The "Other" option allows for flexibility.

One of the most obvious things that the DOL should consider worthy of investigation is that APEX required their H-1B employees to sign an employment agreement letter, which was actually a thinly disguised indentured labor contract. Unfortunately at this time we have no way of seeing the contract because APEX scrubbed it from the internet and then went on a rampage against three web bloggers that did nothing more than post a link to the document on another blog that is run by desis.

We do know that contract violates regulations described in DOL regulations about nonimmigrant "Employee Rights"

Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker`s breach of contract.

For those of you that like to study issues in detail, read more about the differences between liquidated damages and indentured contracts in 20 CFR Part 655 Subpart H 655.731, paragraphs 10(B)(C) . It all sounds esoteric but is really straightforward if you take the time to read it, It`s probably not necessary to understand it all if you just want to dive in and file a complaint, but be sure to use the CFR number if your complaint centers on the contract because that`s what bureaucrats will understand.

The DOL gives a link to mail it to your local office, but in this case it might be more appropriate to mail it to:

Pat Reilly
District Director
Southern New Jersey District Office
US Dept. of Labor ESA Wage & Hour Division
3131 Princeton Pike, Bldg. 5, Rm. 216
Lawrenceville, NJ 08648
or you can call them @Phone: (609) 538-8310, 1-866-4-USWAGE, (1-866-487-9243)

The address for APEX Technology Group is:

Apex Technology Group, Inc.
2703 Merrywood Drive
Edison, NJ - 08817.
Phone :732 -819 -7550
Fax :732-819-7900

Unfortunately complaints filed ASAP probably won`t be able to help John Doe #1, #2, and #3 from persecution by judge Hurley. It`s very important to keep in mind that complaints about things like freedom of speech or violations of due process by APEX will probably be ignored because the DOL doesn`t care about such things. What the complaints could accomplish is to give the DOL reason to investigate other aspects of this company, and that could send a message to the company that they are being watched.

I will have more updates soon because the first article didn`t adequately discuss the three anonymous bloggers, and what potential personal risk they could endure if Judge Hurley exposes their identities.

Stay tuned for more!