The Greater Missouri case has been windingits way through the courts forten years. The case significantly limitsthe scope of the DOL’s authority to investigate H-1B employers, but was limitedto certain Midwest states. A decision issuedlast week, VoltManagement, means that the opinion in Greater Missouri could be applied nationally.
Traditionally theDOL has used any allegation of H-1B or LCA violations as probable cause to investigatean H-1B employer’s entire H-1B program. In Greater Missouri, the Eight Federal CircuitCourt of Appeals held that the DOL’s investigative authority solely was limitedto the allegation. In other words, ifone H-1B employee filed a complaint with the DOL, the DOL could only investigateany violations against that one H-1B employee. The DOL cannot, under GreaterMissouri, investigate the employer’s entire H-1B program.
The Greater Missouri decision, however, waslimited to matters withinthe Eight Federal Circuit, Arkansas, Iowa, Minnesota, Missouri, Nebraska,North Dakota, and South Dakota. In Volt Management, BALCA held that:
Because the case at hand arose in the NinthCircuit, I am not bound by the Eight Circuit’s decision in Greater Missouri.But having been reversed, ARB’s decision in Greater Missouri is not bindingeither. The ARB has had no occasion yet to revisit the issues raised in GreaterMissouri in light of the change in the law—the Eighth Circuit’s holding. Untilthe issue is again reviewed by the ARB, it remains an open question whether asingle aggrieved party complaint justifies a broad investigation into whether anemployer violated the INA with respect to other H1B employees. I follow theEighth Circuit’s reasoning.