Facts

Persian Broadcast Service Global Inc. (Persian Broadcast) is a Farsi-language television station that serves the Persian community.

Majid Varess, an Australian national of Iranian origin, was employed as a reporter and producer for Persian Broadcast. In 2011, Persian Broadcast filed an application for E-3 nonimmigrant status on behalf of Varess to allow Varess to enter the United States and produce programming for Persian Broadcast's televised broadcast for a period of two years.

To employ Varess, Persian Broadcast filed a labor condition application (LCA) with the Department of Labor, which was approved. In August 2013, the Department of Labor approved a second LCA. Varess continued to work for Persian Broadcast in the United States until November 2013, when he left the United States and traveled to Australia. Varess did not renew his visa but continued to work for Persian Broadcast from oversees until July 2014.

Varess filed an administrative complaint against the television station for back wages and the Department of Labor Administrative Review Board (ARB) ultimately required Persian Broadcast to pay back wages to Varess under the E-3 visa program provision of the Immigration and Nationality Act.

Persian Broadcast filed an action against Varess, Martin J. Walsh, in his official capacity as United States Secretary of Labor, and the United States Department of Labor, seeking review of the agency action.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that the Department of Labor's finding that Varess's complaint was timely filed and the agency's calculation of back wages owed to Varess were both arbitrary, capricious, and contrary to law under the under the Administrative Procedures Act. Plaintiff contended that the agency's calculation of backpay to Varess was arbitrary and capricious because plaintiff was not required to pay Varess. More specifically, plaintiff argued that, even if the court accepted that Varess was considered to have legal E-3 status while in the United States, Varess's departure and his subsequent decision not to renew his E-3 visa in Australia absolved plaintiff of any obligation to pay Varess. Plaintiff also contended that if the court found that Varess's administrative complaint was timely filed, the court should rule that the Department of Labor's award to Varess was arbitrary, capricious, and contrary to law. Plaintiff argued that the award of back wages was excessive because it was only required to pay wages under the first LCA, and the administrative award calculated payment of wages for the entirety of both LCAs.

DEFENDANTS' CONTENTIONS: Defendants denied all contentions and asserted that Varess's administrative complaint was timely filed, because plaintiff's failure to pay wages was a continuing violation, and therefore when Varess filed the complaint, the limitations period had not even begun to run. Defendants argued that plaintiff's wage obligation did not terminate when Varess's E-3 visa expired nor when Varess left the United States, because Varess's non-renewal of his visa and departure from the United States did not affect the binding nature of the second LCA. Defendants asserted that the ARB's decision was not arbitrary and capricious, and was supported by substantial evidence in the administrative record. Defendants emphasized that plaintiff was required by its own binding attestation in the LCA, and by the regulations of the Immigration and Nationality Act, to pay Varess the greater of the prevailing wage level for the occupational classification in the area of employment of the actual wage level it paid to all other individuals with similar experience and qualifications. Defendants also contended that none of the exceptions exempting an employer from paying an E-3 worker's wages applied in Varess's case.

Result

The court denied plaintiff's motion for summary judgment; granted defendants' cross-motion for summary judgment on their counterclaim, finding that the ARB's award was not arbitrary and capricious; and ordered Persian Broadcast to pay Varess $183,794, plus prejudgment interest and post-judgment interest.