Dr. Virk’s H-1B Case

By August 5, 2010News & Press

Annie Banerjee, a Houston-area immigration lawyer, offers some of her insight about the legal dilemma facing a dentist named Mahadeep Virk.

The case arose under the Immigration and Nationality Act (INA). A man named Oshmi Dutta filed a complaint with the U.S. Department of Labor’s Wage and Hour Division contending that his employer Mahadeep Virk had violated the INA. After an investigation and a three-day hearing in January 2007, Wage and Hour’s administrator determined that Dutta’s complaint was indeed valid. To sum up the story quickly, Virk is a dentist and a partner in Avenue Dental Care clinic in Puyallup, Washington, with affiliated clinics which were added by the same appellative in neighboring Clackamas and Gresham, Oregon. Oshmi Dutta is also a dentist. In June 2002, Virk hired Dutta to work at the clinic in Washington, pursuant to the INA’s H-1B nonimmigrant worker program. At the time of the January 2007 hearing, Dutta worked at both Oregon locations.

To hire Dutta, Virk filed a Labor Condition Application (LCA) on May 7, 2002 to employ Dutta from June 1, 2002 to May 31, 2005 at $108,000 to $150,000 per year. Virk signed the LCA as “Owner Dentist President.” But by June 2003, while the LCA remained in effect, Virk and Dutta established as equal partners “Avenue Dental Care” clinics in Gresham and Clackamas, Oregon. Virk and Dutta agreed that Dutta would be responsible for day-to-day operations of these clinics. In July 2003, Dutta left Washington to work in Oregon. He drew money from the clinics to compensate himself; as of July 1, 2003, the Puyallup, Washington, clinic no longer paid Dutta his H-1B wages. Two years later, in June 2005, “Avenue Dental Care,” Puyallup, Washington, filed a second LCA to employ Dutta from June 12, 2005 to June 11, 2008, in Clackamas, Oregon, at $108,000 per year. Virk signed the LCA as “Owner Dentist President.”

In 2005, conflicts developed between Dutta and Virk. Dutta complained to Virk that Virk had not compensated him as they had agreed and that Virk had not addressed cash flow and management problems at the Oregon clinics. Dutta sought to sell Virk his fifty-percent interest in each Oregon clinic, or alternately to negotiate a new compensation agreement. Virk balked.

“I can see precisely where this is going,” said Houston-area immigration lawyer Annie Banerjee, “hard feelings were engendered. As H-1B wages are stipulated in the LCAs, and they stem from signed agreements, they must be paid.”

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