certain h one b employees and the facts in this case show that in fact these the employee was paid in excess of the amount specified but not in the increment and in the time correct and the issue here is as to whether or not the back wage obligation is the same as the obligation on what schedule to pay it the the right and the remedy is set forth explicitly in the statute and as we heard in the prior arguments the statutory govern statutory provision by congress governs and that is at eleven that eight us the eleven eighty two and two d which provides that the if the secretary finds after notice an opportunity for hearing that the employer has not paid wages and this is the key at the wage level specified under the application and required under paragraph one which is the l c a the labor condition application that the secretary shall order the employer to provide the payment of such amounts of back wages as may be required to comply with that labor condition application that labor condition application in section one can be found in the record appendix at forty four and under the department's regulations the obligation that is in that l c a can be expressed either on an hourly weekly or biweekly a monthly or an annual level in this case the regs to prospectively over pay and just so long as the employer never falls behind with people he's owed for the year or do you think that on an annual basis with the agency needs to do is look at whether there has been an overpayment in pro rata references are irrelevant with the agencies look at the end of the years where there's been an underpayment and that the program requirements are irrelevant for purposes of determining whether or not there has been there is a back wage obligation it is the it is whether or not the employer has paid on an annual basis as reflected in that l c a you look at the end of the year yes and so  the employer can pay nothing for twelve months and then pay everything in at the end of december and there would be no violations that your position no that is not the position in fact there are other remedies in the statute which to which the schedule on which those payments are due have to be satisfied and in fact if no less than the monthly correct and if those conditions are not satisfied then the other remedies that are set forth in the statute that is in sections and one and that they talk about whether or not the violations are willful or not but you could have a situation and in which you do find that there was a violation of the statute in the prop the the payment on a monthly schedule as the regulations provide however the remedy for that is quite different the remedy in those situations are if it's found to be a willful violation there's a five thousand dollar employee and just making the economic calculus about whether it's cheaper or better suited to his cash flow needs to pay a fine at the end of the year or pay a certain amount towards compensation  over the course of the employment and that seems inconsistent with congress purpose of trying to protect american workers who wouldn't satisfy you settle for that those kind of payment conditions not quite there  addition to the monetary penalties there are additional penalties of being losing the ability to hire h one b employees so there are significant remedies that are provided for the failure to do so and i would point out in this case you actually have the convert the opposite of that which is you have front loaded payments and to contrast that for instance you could have a situation where they say we're going to pay the employees sixty five thousand dollars for the year they pay  me that amount on the front and the first day and then they're held in violation for the last eleven months of that period and the remedy and this is where the remedy is very important the remedy according to the government would be you owe the sixty but why doesn't the same the principle you draw from that apply to the employer pays everything the end i think i agree that it is exactly the same issue which is that whether or not there is a violation of the schedule on which there are these payments are to be staggered out is a separate and distinct issue then from the back way dramedy congress specifically said in the back way dramedy in  section d that you look to what has been specified in the list l c a and here in appendix forty four expressly says it is the amount on an annual basis now there may be at you know as as we're highlighting here there may be issues with the timing and if the employer chooses to either willfully or inadvertently not hit those targets the secretary has various remedies that are in the statute for that that the remedy that is being requested here is one that doesn't fit whatever the violations are that is the remedy and again the statute governs in the statute says you look to see in the back wages shall provide the payment of such amounts which are the amount specified in the l c a and the l c a here is on an annual basis and it it there is no deficiency in this case now it could be as we say and as we've highlighted that there are various other remedies that are in the statute determine whether or not the employers willfully doing this or inadvertently doing this what the government take it or use is that there really is no documentation here that i  your response to that that's just as to the timing issues so that if you can do wish to pay on a you know to include the discretionary bonus that you don't then you do need to document that for purposes of this appeal that is not the primary argument here because as as you stated we're acknowledging that there was an issue with respect to the timing of these payments however the the focus of our appeal here was really what is the remedy from that and the remedy that the government and the department of labor ultimately came to is one that the statute does not allow thank you from the  discussed in the district were creating it was not discussed by the district court it was not raised in the administrative perceptions just tells us opposing counsel just told us that the back wages remedy is not permitted this that and that is something that he raised for the first time in the reply brief a that's what triggers the violation of that triggers the back way trinity but that language simply doesn't support the argument simply saying that the wage level must be paid a specified in the l c a is silent as to the timing of when it must be it's it's silent as to how it must be paid or whether it must be pro rated and i might point out that for instance if this employee had quit after six months at which point he was thousands of dollars underwater after six months if you quit at that point i very much doubt that aleutian would be saying that they had to pay the wage level specified in the l c a meaning the entirety of the annual wage let me ask had he quit after six months how quickly does an h one b  worker need to leave the country after leaving the employment that allowed him to be here i i don't have a precise answer that for that i'm wondering whether that person would have an opportunity to recoup or pursue remedies or whether the departure requirements are such that that would be illusory right well certainly the department of labor would have the opportunity to do what it did here in a seek to recoup back wages on that employees behalf but you know under the  looking at the facts of this case after six months in the first four months this worker mr gandhi was grossly underpaid he was paid as little as one third of what was promised as as i said they fell behind about half of his wages he was about ten thousand dollars the water at a point when he was all the knowledge of violations they acknowledge the violations so they object to the ram and they object and now they're saying they have as i said they've shifted the arguments to the remedy but the statute simply doesn't support that the language  regulation that interprets that statute is section six five five point eight one zero and that regulation says very clearly that a back wage remedy can be imposed for violations of six five five point seven three one and that's the regulation that contains the parada requirement so under the regulation it's quite clear that a violation of the program monthly payment requirement can in fact trigger the back way to remedy that the department of labor impose workers foreign workers are paid in a steady stream as congress intended they're paid what they were promised again if this worker had quit after six months there's absolutely no reason to believe that they would have caught up and paid him and that would have not only been unfair to him but would have it would have undermined the wages of american workers which as the court has pointed out was an express perp of congress not to undermine the wages of american workers to ensure that prevailing wages are paid  there are there any limits to your position what if they had paid him ten times the amount he was due for the first ten months and then stop paying him for three months how would you handle that so you know the aleutian has pointed to a number of hypotheticals similar to that and i would point out first that you know when looking around at our history we don't really see any examples of people doing that and will make mistakes people make mistakes they rarely do things like pay seventy two thousand reviewing i'm sorry i mean the case is the types of cases that i think is carney is rightly alluded to or not the case is that the department of labor is going to spend its resources reviewing exactly the department of labor has an fauresmith discretion like any law enforcement agency and be a violation but it's not going to right and i would simply ask that if such a i would posit absurd hypothetical were to come before the court the court would review it at that time but having not seen a record of anything similar to that i don't think it really sheds much light on this case where as they said we have a worker who is very severely underpaid for many many months and and in that case in that situation for the department and to investigate and to assess a back wage is is reasonable it's certainly not arbitrary and capricious which is the standard that this court applies if the court has no further questions on the violation of the remedy i would briefly like to we can distinguish on the facts and we can disagree with its its reasoning on the facts this is a far more limited investigation and greater misery they investigated based on one finding of reasonable cause as to something that was and that was it i think was a benchin violation as to one employee they got basically all the records as to everybody in the h one b program and found violations for at least three different types of violations for i think it was forty four separate employees and the circuit found that objectionable but here we have something far far smaller we have a wage violation that was complained to the department and the department then asked for h one b pay were payroll records which is a reasonable request given that it was a payroll violation that was alleged and found one other employee for one month by a lation with respect to that employee's so we don't have the kind of what they had circa described as an open ended investigation it's not an objectionable far reaching investigation but what we do disagree with it on the law we think that the eighth circuit read into the statute a limitation on the scope of investigation that is not there  in fact the statute does the opposite it gives it delegates to the department of labor very broad discretion to determine for itself how to investigate in response to an aggrieved party complain and the deal well in fact did take that delegation and expressed delegation of authority and promulgated a regulation that gives itself very broad discretion to determine as regulations as as appropriate as they did department of labor deems necessary to to to investigate and force that's not only consistent with the statutory text but it's consistent with the purpose of investigations in this in this type of case department does not have the authority to investigate on the front end whether the certifications are incorrect their only ability to protect the wages of the h one b workers and the prevailing wages of american workers is to investigate in response to these complaints what's the that's not close to what we have here i would point out it's touch type of violation maybe you said that this was a payroll violation and they inquired into another payroll violation where there were no limits at all on type of violation or was the whole h one b program that they looked at in great great  right that's that's as the its market describe it as my understanding of what happened in that case yes i would point out too that in that particular context of h one b workers you have foreign workers whose visas depend on their employers see evidence if they receive an aggrieved party complaint showing evidence that one h one b worker is being systemically underpaid it's reasonable for them to look to the other ones in order to prevent the kind of wide ranging violations of the wage requirement that would do exactly what congress sought to insure against which is undermine the wages of american workers the it circuit did not consider those purposes they did not consider the regulation i cited which is six fifty five point eight ten  we've we do think that the court can distinguish on the facts as your honor pointed out but you know as i say the circuit did read into the statute of limitation that's not there and i don't know that there's any way thank you your honor if i could just a dress a couple of the points the first is the question of whether or not the payments in other periods satisfy the obligations under the prepayment that's governed by  what's defined as the cash wages paid in section six thirty seven thirty one and that includes all payments that are made whether or not they were contingent originally or not once they have been made they are no longer contingent and therefore they satisfy the obligations for purposes of determining this now the you know there was various back and forth about whether  not at what point the employee might have been terminated and might have been brought current the record here in fact shows that within three to four months when the at end of year bonuses came due mr ganji was paid in far any of these vanity these arguments the timing violation arguments in your opening brief yes in fact thank you for raising that the the issue of whether or not there was a a remedy here was addressed by the dissent in in the a a r p you can find that appendix page forty to make the argument and you agree yes the issue of whether or not payments in other periods count towards the obligation is been throughout you know as i said from the in front of the a r b two on our opening brief where in your ope on page eleven the heading art says the department's argument about the timing of aleutians wage payments does not impact that the wages were paid and must be included when  back wages and so on pages eleven through page thirteen has a heading in any event there was no violation of the regulations timing requirements so the remedy issue of is  eleven through thirteen of our brief but and that stems from the a r b's decision where the dissent states that the an administrator's factual concession that had been paid more settles that there was no under more than required in the first quarter of the year catalyzed for pay more this was the dissent of saying that these payments and you agree that they violated their contract by not paying the correct agreements well i'd refine that slightly to say that not that they violated their their contract because they satisfy the annual obligation but they've violated the secretary's regulations as to when those would be paid yes exactly but again the remedy the the main thing here is that congress specifies the remedy and although there are other remedies available for the timing the back wage issue  citation which says that this remedies may well and i disagree first of all the statute is very clear on that but even as to the regulations the regulations that are  cited is six fifty five eight ten which simply talks about that the remedy shell equal shell equal to the difference between the amounts that should have been paid and the amounts that actually was paid to or with respect to such non immigrants so the remedy that even the provision they are relying on does not state what i think they're trying to say which is it includes a timing issue it just simply reflect what's in the statute that is the remedy has to be based on what what you promised to pay and what was actually paid thank you