DOL Finds Wages Due to Employee under H1B Portability Provisions
Posted May 26, 2006
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The U.S. Department of Labor (DOL)'s Administrative Review Board (ARB) found in ARB Case No. 03-072 that an employer could be liable for back wages before an H1B petition is approved in certain situations. The liability was based on the employer's H1B petition and the employee having presented herself for employment prior to the H1B approval date under the rules of portability. While the Murthy Law Firm was in no way connected to this case, we are sharing the results with MurthyDotCom and MurthyBulletin readers, so that due consideration is given by the employer and the employee when filing an H1B petition under portability.
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Facts of Case - Are Wages Due from Time of H1B Filing?
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In this case, the employee never did any actual work for the employer. The employee changed cities to begin employment, however, and actively sought contract work at the behest of the employer. The employer filed the H1B petition in December 2000. The employee moved to the new work location in the city in January 2001, and the H1B petition was approved in April 2001. The employment was terminated in May 2001. The employer at some point conceded that wages were due from the time of the approval in April 2001 until the termination date in May 2001 and paid that amount. This case focused on whether any money was due from December 2000, upon the filing of the H1B petition, until April 2001, when the case was approved.
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No Productive Work Required for Wages to be Due
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The ARB found that money could have been due to the employee as early as December 2000, when the H1B petition was filed, because the employee was eligible under the H1B portability provisions to start working for the employer at that time. Since the employee did not move to the new city to begin employment until January 2001, however, the ARB found that the employee did not present herself for employment until that time. Therefore, wages were due from January 2001 to April 2001, regardless of never having performed any work, because the employee was looking for work at the behest of the company.
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Employer Argues Salary Not Required While H1B Pending at USCIS
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The employer tried to argue that the wages were not due until the H1B petition was approved because, among other reasons, the employer was either a family friend or related to the employee in some way and was really "trying to help her out" rather than actually trying to employ her. The ARB found that this argument was not persuasive because the reality that the ARB was compelled to follow was the reality described in the H1B petition. The H1B petition represented that the employer had work for the employee as of January 2001, and thus, the employer was bound by those claims, as stated in the H1B petition.
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Conclusion
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This is a cautionary tale. When someone is losing an H1B job, an employer may feel inclined to help by offering that individual a position. This is perfectly acceptable as long as the employer actually has a job to offer. Otherwise, that employer may be found to owe wages to someone who never actually does any work for the company or organization. In filing the H1B petition, the employer represents to the government, under oath, that there is work within the company for the employee to perform. The employer's representations need to be accurate. The obligations to pay the required prevailing wage to the H1B employee cannot be escaped by arguing that the employer did not really mean what was stated on the H1B petition in the first place. There may be instances in which claims of fraud may also be pursued, though fraud claims would likely be explored by the U.S. Department of Homeland Security (DHS) rather than the DOL.
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