Alternate Way for H1B Employers to Satisfy Bona Fide Termination Requirements02 Feb 2015
Employers of H1B workers must comply with strict requirements enforced by the U.S. Department of Labor (DOL). One such requirement is the obligation to pay wages until there has been a bona fide termination of H1B employment. The applicable standard rules were established in a 2006 case before the Administrative Review Board (ARB), Amtel v. Yongmahapakorn. A 2014 ARB case, Batyrbekov v. Barclays, however, provides a new means of potentially satisfying the bona fide termination requirements.
Bona Fide Termination Requirements
In the Amtel decision, the ARB explains that a bona fide termination of an H1B worker generally requires the employer to notify both the H1B worker and the U.S. Citizenship and Immigration Services (USCIS) of the termination, and to offer to pay the H1B worker for the reasonable costs of return transportation abroad. If an employer fails to fulfill these requirements in terminating an H1B worker, the company may be found liable by the DOL for back wages through the date that the underlying H1B petition expires. The MurthyDotCom NewsBrief, Bona Fide Termination Requirement for H1B Employee (01.Nov.2012), provides a more complete overview of these standard bona fide termination requirements.
Background on Batyrbekov v. Barclays
The Barclays case involved an H1B worker, Mr. Kuanysh Batyrbekov, who was employed by Barclays Capital. Barclays terminated Mr. Batyrbekov’s employment, but failed to notify the USCIS of the termination. Shortly thereafter, a different company filed an H1B petition on Mr. Batyrbekov’s behalf, which was approved. The job fell through before he joined, however, and, within a couple of months, the worker returned to his home country where he secured a new job. Mr. Batyrbekov subsequently filed a complaint with the DOL, alleging, among other claims, that Barclays owed him some eighteen months of back wages. He based this on the date the LCA and H1B petition expired, and claimed that Barclays was liable for this entire period because the company failed to complete the necessary steps to effect a bona fide termination.
New Way to Show Bona Fide Termination Requirements are Met
On appeal, the ARB acknowledges that Barclays had failed to notify the USCIS of the termination, but determines that “…the Amtel definition of a bona fide termination cannot be strictly applied to cases involving multiple H1B employers.” In rejecting Mr. Batyrbekov’s request for additional back wages, the ARB establishes an alternate way of establishing that the bona fide termination requirements have been met. The ARB explains that a bona fide termination can occur and end the employer’s liability for back wages if the employer can prove that the H1B worker is notified that the employment is terminated, and the USCIS approves a subsequent H1B change of employer petition for that worker.
Fulfilling Amtel Requirements Still Recommended
Despite the ruling in this case, H1B employers should still abide by the bona fide termination requirements laid out in Amtel (i.e. Notify the H1B worker and the USCIS, and offer to pay for the worker’s return transportation home.) This holds true even if the exception in Barclays appears to apply. While this exception may help reduce an employer’s liability in the right situation, the ARB emphasizes that the burden of proof is on the employer. Further, the ARB notes that issues such as the possibility of concurrent employment may mean that an approved H1B petition filed by a different company would not necessarily clear the initial H1B employer of liability.
The Barclays decision may prove helpful to employers in certain situations, but typically only if the company has overlooked the need to notify the USCIS of an H1B employee’s termination. Still, this case does highlight how an H1B employer can overlook a small detail that has the potential to cause a serious economic impact. The Murthy Law Firm will continue to track changes in case law to the H1B program and will share useful updates on MurthyDotCom.
Copyright © 2014, MURTHY LAW FIRM. All Rights Reserved