Bench rules enforcement: who does it?

J

jaxen

Volunteer Moderator
I have been observing and suggesting answers to many queries in this forum. I have a question to this community. I know that answers to this question might cause H1B holders currently in bench a squirm time and the so called sympathetic companies (who dont pay these benchers, but dont report to INS about H1 cancellation) a legal threat.

Please dont use up this thread with your judgement posts.

I need information as to

1. What kind of lawyer or counsel takes up cases of H1B holders who have been on the bench on and off for more than 1 year and have not been paid - period. An immigration lawyer or a civil litigation lawyer?

2. Has there been any instances of such litigation or settlement that was effected this past few months?

3. What Non Profit body oversees such cases? If the INS is not concerned about tracking whether a H1B holder is being maintained as per the LCA/I129 promise, if lawyers side with their paymasters and the citizenry use H1B holders to take pot shot at , and politicians (US and other countries) are only concerned about their own coffers, who will take care of this pathetic lot? I am not sure AILA or ISN fits the bill yet...Or do they?

4. When the big companies apply for increase of H1B "Quota" why do they not create a mechanism to check the abuse of the H1B system? How come a country that is steeped with human rights advocacy image permits such demeaning treatment of the educated/literate from a foriegn country??? Any lobbyists here??

Dont give comments like " yes I also want to know". I will take care of bumping this thread to top once in a while. I hope that some lawyer or some so called advocate or some beneficiary of such a litigation comes out with a blueprint of a solution.

If not, this acknowledges that H1B holders are indeed are undergoing indentured servitudes...

Sorry I am aware of benefits of h1B holders etc. so pipe down and give specific answers to the questions...
 
I am in active litigation with one of these complaints (We need to respond to interrogatories very soon) and I will probably be filing suit in the next couple months for another case.

Of course, the attorney handling the case must be licensed to practice in the state in question. Additionally, the person must have enough experience with litigation to survive the pretrial process and actually prepare and take the case to trial if necessary. Knowledge of immigration law is probably necessary in order to convince the attorney that there is a case. I think knowledge of immigration law probably would help to facilitate case settlement but litigation knowledge and experience is also important.

Most of these cases that are handled administratively are done by DOL. INS seems to have limited interest but may investigate a company if it received many complaints about the company's conduct.

If I had to choose blindly between a litigator and an immigration attorney, I would choose the litigator since most of this work will be done in a courtroom or pretrial proceedings and too many immigation attorneys have zero experience in that area. Even attorneys that frequently go to court for removal proceedings might be lost with discovery, summary judgment motions, protective orders, rules of evidence and civil procedure, depostitions, and other common trial devices and techniques.
 
Thanks Jim. That is heartening to know.
Any body who know of any such advocacy movement.
Some success stories from H1B holders will add some spice to this thread...
 
See: http://www.ilw.com/lawyers/immigdaily/digest/2002,1203.shtm which states:

Today, we bring you news of another large back pay award by the Department of Labor against an employer in a case connected to "benching" or in the words of the administrative decision "leave without pay." As our readers will recall, in October this year, the Office of Administrative Law Judges at the Department of Labor announced a record $1 million plus in back pay In the Matters of Wage and Hour Division v. Mohan Kutty, Nos. 2001-LCA-00010 through 2001-LCA-0025 (OALJ, Oct. 9, 2002). Today's decision, In the Matter of Pegasus Consulting Group, Inc., No. 2001-LCA-00029 (OALJ, Nov. 13, 2002), almost a quarter million dollars in back wages was awarded and the employer was assessed $40,000 in civil penalties for committing a willful/knowing violation. Unlike the 100+ page Kutty decision, today's document is only 10 pages long. Attorneys with practices involving H-1Bs, i.e. virtually all business immigration practitioners, will likely find a review of this administrative decision instructive.

Forthose interested, see http://www.oalj.dol.gov/public/ina/decsn/01lca29a.htm
 
1 more Q

Thanks again Jim...
One more Question. So DOL will take interest only if the case is "widely prevalent" against a company? An individual wronged by said company cannot get justice???
 
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