The H-1B “specialty worker” visa program allows individuals who meet certain criteria regarding education and job skills to come to the U.S. on a temporary basis to work in a qualifying job. The U.S. Department of Labor (DOL) is responsible for administering parts of the H-1B program. The DOL’s Wage and Hour Division (WHD) enforces regulations regarding the conditions of employment for H-1B workers. In July 2016, the Office of Administrative Law Judges (OALJ), also part of the DOL, affirmed an order from the WHD finding that an employer violated DOL regulations by failing to notify the Department of Homeland Security (DHS) that it had terminated an H-1B employee. Adm’r v. ME Global, Inc., No. 2013-LCA-00039, dec. and order (OALJ, Jul. 29, 2016). The OALJ ordered the employer to pay almost $183,000 in back wages.
In order to obtain an H-1B visa for an employee, an employer must get approval from both the DOL and DHS. Obtaining the DOL’s approval requires submission of a labor condition application (LCA). Among multiple other requirements, this document must state that the employer will pay the H-1B worker a fair wage and provide fair working conditions. 8 U.S.C. § 1182(n)(1). An employer is required to pay wages to an H-1B worker for as long as they are working and during any period of time that they are not working “due to a decision by the employer.” 20 C.F.R. § 655.731(c)(7)(i).
If an H-1B employee becomes “nonproductive” because of “conditions unrelated to employment” that the employee requests, because the employee is unable to work due to accident or illness, or after “a bona fide termination of the employment relationship,” the employer is not required to pay wages. Id. at § 655.731(c)(7)(ii). The issue presented to the OALJ in ME Global was whether a “bona fide termination” had occurred.
The respondent employer in ME Global hired the H-1B employee, a citizen of Canada, in January 2007 under a TN visa. It obtained an H-1B visa for the employee in 2008, which was valid until September 2011. Two months later, the employer fired him for “unsafe conduct.” ME Global at 4 n. 6. It paid him wages through the end of November 2008 but did not notify DHS of the termination. The employee filed for unemployment benefits that December.
The WHD ultimately found the employer liable for four regulatory violations, including failure to pay wages under 20 C.F.R. § 655.731. The employer argued to the OALJ that the employee’s firing in November 2008 was a “bona fide termination.” It cited a 2004 decision from the DOL’s Administrative Review Board, Adm’r v. Ken Technologies, No. 03-140 dec. and order (ARB, Sep. 30, 2004), which held that a bona fide notification does not necessarily require an employer to notify DHS.
The OALJ rejected this argument, citing a subsequent decision that effectively overturned Ken Technologies. Adm’r v. Univ. of Maine, Nos. 10-090, 10-093, dec. and order (ARB, Dec. 20, 2011). This decision held that the termination of an H-1B worker is not bona fide unless the employer notifies the employee and DHS. The OALJ affirmed the WHD’s order, which included $182,943.65 in back wages.
Immigration lawyer Samuel C. Berger represents employers in the New York City and Northern New Jersey areas that want to petition for an employment-based immigrant visa or nonimmigrant visa for a foreign worker. To schedule a confidential consultation to see how our experienced and skilled team can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.
More Blog Posts:
Lawsuit Seeks Transparency Regarding Selection of H-1B Visas, New York & New Jersey Immigration Lawyer Blog, June 9, 2016
Federal Appellate Court Considers Whether Undocumented Immigrant Can Make Claim Under Antidiscrimination Law, New York & New Jersey Immigration Lawyer Blog, May 26, 2016
Immigrants Account for a Substantial Percentage of Business Startups in New Jersey and Around the Country, New York & New Jersey Immigration Lawyer Blog, April 28, 2016