General Practice, Solo & Small Firm Division

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American Bar Association - Defending Liberty, Pursuing Justice

June 2008

Vol. 4, No. 3

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Litigation

 

DOL Awards Prevailing Wage to Terminated H-1B Employee for Period of Employee's Authorized Stay in H-1B Status Due to Lack of Bona Fide Termination

The Department of Labor’s administrative review board addressed the circumstances that constitute termination of employment for purposes of the employer’s H-1B obligations. In its analysis of the case, Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB Sept. 29, 2006), the Board ruled that the employer, Amtel Group, had not effected a bona fidetermination of its H-1B employee, because there was “no evidence that Amtel notified the USCIS that it had terminated (the H-1B employee) and that Amtel provided (the H-1B employee) with payment for her transportation home.” As a result, the Board decided that Amtel was not justified in withholding the salary otherwise due to the employee, while the H-1B was effective according to the H-1B petition approved. The Board then ordered Amtel to pay the prevailing wage for the internal auditor until the expiration of her authorized period of stay for H-1B employment. To read the full decision, go to www.aila.org/content/default.aspx?docid=20900.

This case stresses the importance of an employer’s sending a letter to USCIS upon the termination of any H-1 employee. Immigration counsel will provide you with a sample letter to use whenever an H-1 employee is terminated, to meet the employer’s obligation to notify USCIS of a termination under the H-1 program as reiterated in the Amtel case. In addition to giving notice to USCIS, if an H-1 employee is terminated (for any reason other than cause) prior to the full term indicated on the I-797 approval notice, the employer must offer to pay the return transportation costs for the individual (but not for dependents) to the individuals’ country of citizenship. Once again, immigration counsel can provide you with a “sign off” letter, which should be included in any termination material, asking the individual to confirm they wish to accept this benefit or whether they wish to waive the benefit (i.e., they are leaving employment to assume new H-1 employment with another employer) or not returning to their home country.

 

Neil S. Dornbaum and Kathleen Peregoy are members of Dornbaum & Peregoy LLC Newark, New Jersey. Their practice is limited to immigration and naturalization with special emphasis on employment-based immigration. The firm is listed in Martindale-Hubbell’s “Preeminent Lawyers,” and both members are listed in “Best Lawyers in America” and in New York. They also appear in New Jersey Magazine’s listing of “Top Lawyers” for their work in immigration law, and the “Super Lawyers” publications.

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