District Court holds medical clinic owner liable for immigration and wage violations

A District court recently upheld the Department of Labor’s Administrative Review Board’s (ARB) findings that a doctor who operated several medical clinics in Tennessee violated numerous provisions of the Immigration and Nationality Act (INA) and was personally liable for back wages of his former employees, including expenses the physicians incurred in obtaining their J-1 waivers and H-1B visas, as well as civil penalties.

Mohan Kutty, owner and operator of Center for Internal Medicine and Pediatrics, employed 17 physicians on J-1 nonimmigrant foreign-medical-graduate visas which allowed them to remain in the U.S. for their graduate and medical training, but required them to return to their home country for an total of two years following their J-1 visa’s expiration. However, at Kutty’s direction, each of the physicians obtained a J-1 waiver based on a contract of employment with him to provide medical services in an underserved area and applied for H-1B visas.

Dr. Kutty completed and filed Labor Condition Applications (LCAs) for the physicians with the DOL. The LCA certified that the H-1B worker would be paid the greater of either the actual wage level the employer paid to other individuals with similar experience or the prevailing wage level, with the applicable wage rates specified on the LCAs ranging from $52,291 to $115,357. Kutty also filed the physicians’ H-1B nonimmigrant-worker petitions, in which he agreed to the terms of the LCAs. The petitions were approved and the visa status of the physicians was changed from J-1 to H-1B.

In January 2001, Kutty began withholding the physicians’ salaries, which he released when they began seeing more patients. Eight of the physicians filed a lawsuit. After being served with the suit, Kutty stopped paying the eight physicians’ salaries, except for one partial payment. Kutty continued to pay the physicians who did not join in the letter. Two more physicians would later join in the suit. Later, Kutty would fire seven of the ten physicians included in the DOL complaint.

Here is a list of the allegations against Dr. Kutty, filed with the DOL:

• Kutty paid doctors 1/3 to 1/2 of the wages listed on the LCA;
• Presented them with impermissible employment agreements, including penalties for ceasing employment and noncompetition clauses;
• Delayed the start of payment of their wages;
• Required them to perform additional duties;
• Sought to prevent them from complaining through threats;
• Retaliated against those who complained by further reducing their pay;
• Failed to allow public inspection of documents when requested as required by law.

The Administrator of the Wage and Hour Division of the DOL determined that Kutty and the medical clinics “had violated numerous provisions of the INA by willfully failing to pay required wages to the physicians, failing to make LCAs available for public examination, failing to maintain payroll records, and retaliating against nine of the physicians for engaging in protected activity under the INA.” Kutty was ordered to pay all fees and expenses associated with the physicians’ J-1 and H-1B processes, and was also ordered to pay attorney’s fees for preparation of the I-129H and other expenses. The Review Board concluded that even if the H-1B visas should never have been granted, this does not relieve Dr. Kutty from paying back wages, because that would penalize the H-1B doctors for Dr. Kutty’s misrepresentations. 

The Board also rejected the argument that the petitions should have been denied because of inconsistencies between the wages stated on the LCAs and on the employment agreements, since Dr. Kutty signed the LCA form for each doctor, thereby obligating himself to observe its terms. The Board also found that Dr. Kutty never intended to pay the wage rates set forth in the LCAs.

The H-1B visa program is a voluntary self-attestation program that permits employers to temporarily secure and employ nonimmigrants to fill specialized jobs in the United States and abuse of this program can and most likely will have adverse and often costly penalties. 

Sharma Law Offices, LLC is a highly rated boutique immigration law firm operating out of Atlanta, Georgia and represents clients throughout the United States. Our Atlanta H-1B immigration attorney(s) always strive to educate our clients with the most up-to-date information.