An H-1B Visa Employer that Does Not Effect a “Bona Fide Termination” under the H-1B provisions is Liable for back wages to the H-1B Employee.
To employ H-1B visa nonimmigrants, an employer must fill out a Labor Condition Application (LCA). The LCA stipulates the wage levels that an employer guarantees for the H-1B visa worker’s pay. In signing and filing an LCA, an employer attests that for the entire “period of authorized employment,” the required wage rate will be paid to the H-1B nonimmigrant.
An employer need not compensate a nonimmigrant, however, if it has effected a “bona fide termination” of the employment relationship. To ultimately effectuate a “bona fide termination” under the INA, an employer must notify USCIS that it has terminated the employment relationship with the H-1B nonimmigrant employee so that USCIS may revoke approval of the H-1B petition. The employer must also provide the employee with payment for transportation home. Failure to do so may subject the employer to liability for back wages to the H-1B employee.
In Amtel Group of Florida v. Yongmahapakorn, Amtel provided notice to the H-1B visa employee that it had terminated the employment relationship. Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06). However, the court held that notice alone was not sufficient to end the employer’s obligation to pay the required wages to an H-1B employee. The employer does not effect a “bona fide termination” and, therefore, end its obligation to pay the required wages to the H-1B employee unless the employer has also notified USCIS. The court therefore ordered Amtel to pay the employee the prevailing wage for an internal auditor until the expiration of her authorized period of stay for H-1B employment, plus prejudgment compound interest on the back pay owed and post judgment interest until the employer made full payment.