WILLIAM J. MARTINI, District Judge.
This is an action brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, for review of a final decision of the Department of Labor. Plaintiff CAMO Technologies, Inc. ("CAMO" or "Plaintiff") filed a motion for summary judgment seeking to set aside a Final Decision and Order of the Department of Labor's Administrative Review Board ("ARB"). Defendants, who are the Secretary of the Department of Labor, the Secretary of the Department of Homeland Security, and the Director of the U.S. Citizenship and Immigration Services ("Defendants") filed a cross-motion to affirm the same Decision and Order. There was no oral argument. L.Civ.R. 78.1(b).
For the reasons set forth below, Plaintiff's motion is GRANTED, and the Defendants' motion is DENIED.
This case involves the notice-posting requirements of the Immigration and Naturalization Act's H-1B visa program. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B visa program allows nonimmigrant workers in certain "specialty occupations" to work on a temporary basis in the United States for employers who file proper applications with the Department of Labor ("DOL") and the Department of Homeland Security ("DHS"). Id.
CAMO is a New-Jersey-based consulting company that provides workers who have computer programming and technology expertise to its clients. (Plaintiff's Statement of Undisputed Material Facts ("Pl's SOF") at ¶ 8) CAMO challenges a Department of Labor ("DOL") determination that CAMO willfully violated the H-1B statues and regulations by failing to post notices of H-1B visa applications at appropriate work sites sixty-seven times between 2006 and 2009.
The DOL imposed $192, 625 in civil monetary penalties and a mandatory two-year disbarment from the H-1B program. Plaintiff sought the review of an Administrative Law Judge ("ALJ"), who rescinded the penalties. DOL appealed to its Administrative Review Board ("ARB"), which reinstated the penalties. Plaintiff now seeks this court's review.
A. STATUTORY AND REGULATORY SCHEME
An employer who seeks H-1B status for an employee or prospective employee must submit a Labor Condition Application ("LCA") to the DOL. 8 U.S.C. § 1182(n)(1). In addition, notice of the filing of the LCA must be posted. 8 U.S.C. § 1182(n)(1)(C); 20 C.F.R. § 655.734 (the "LCA Notice Requirements"). The employer can satisfy the LCA Notice Requirements by "posting a notice in at least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity)." 20 C.F.R. § 655.734(a)(ii)(A)(1).
The LCA Notice Requirements are designed to protect American workers from displacement by H-1B workers. See 65 Fed. Reg. 80110 at * 80111 (Dec. 20, 2009).
According to the DOL, 20 C.F.R. § 655.810(b)(2)(i) permits the DOL to assess a $5, 000 penalty for "willful" violations of the LCA Notice Requirements. (Defendants' Moving Brief at 10) The regulations require DHS to debar an employer who commits a "willful failure" to comply with certain H-1B program requirements from further immigration petitions for its employees for at least two years. 20 C.F.R. § 655.810(d). A "willful failure" is a "knowing failure or reckless disregard with respect to whether the conduct was contrary to" the statute and regulations. 20 C.F.R. § 655.805(c) as a
B. FACTUAL BACKGROUND
CAMO is an H-1B dependent employer, as approximately 90 percent of its workforce (42 out of 48 employees) is composed of H-1B nonimmigrant workers. (Defendants' Local Rule 56.1 Statement ("Defs' SOF") at ¶ 1; see also Plaintiff's Local 56.1 Response at ¶ 1) Many of CAMO's employees work intermittently in CAMO's offices in Woodbridge, New Jersey, but are also asked to work at the facilities of the clients for whom CAMO is providing information technology services ("direct clients" or "primary clients"). (Pl's SOF at ¶ 10) In a significant number of cases, CAMO's direct clients are other information technology consulting companies, who, in turn, place CAMO's employees, along with its own staff, at the locations of their own clients (the "secondary clients" or "end users" or "third-parties"). (Pl's SOF at ¶ 11)
1. The 2001 Investigation
In late 2001, John Warner of DOL conducted an investigation (the "2001 Investigation") of BIT Technologies, Inc. ("BIT"), a predecessor company to CAMO. ( See Pl's SOF at ¶ 12) The investigation involved three meetings with BIT representatives, principally, BIT Vice President Shrindar Marghan and Human Resources Manager Anurag Sharma. Sharma was the person who would have been responsible for the LCA postings during the 2001 Investigation. (Certified Record, "CR" 360) The investigation uncovered violations of H-1B wage requirements and violations of LCA Notice Requirements. (CR 233)
Warner's first meeting occurred in October 2001 ("the October 2001 Meeting"). Nalini Parsram, BIT's Business Director, attended this meeting briefly. (CR 360 at ¶ 18; CR 234, 305) At this time, Ms. Parsram had no responsibilities for the filing of H-1B visas, and she was on maternity leave. (CR 303) BIT asked Parsram to attend only because the DOL addressed its first letter about the upcoming investigation at BIT to her. (CR ...