Sauce for the gander is not necessarily sauce for the goose. If a private employer fails to pay the prevailing wage to a worker in H-1B visa status, U.S. immigration law authorizes the Department of Labor to order the employer to pay back wages. When a VA hospital is the short-changing employer of 11 H-1B doctors, however, the wage protections of our immigration laws can be ignored, so says the General Counsel (GC) for the Department of Veterans Affairs (DVA).
Sovereign immunity, the doctrine that bars suits against the government when acting in its governmental capacity, prohibits payment of back-wage claims. According the DVA GC’s opinion, Congress didn’t express itself unambigously and say clearly that sovereign immunity is no bar to enforcement of a DOL order for back wage payments.
So, Members of Congress, if you expect employers to follow the immigration laws, lead by example. Amend the immigration laws to say that notwithstanding sovereign immunity, when the VA or any other government agency that employs H-1B workers stiffs them on wages, backpay is due.