H-1B Employer's Obligations under the H-1B and LCA, and Wage Obligation until Real Termination
It is important for employers to understand their obligations and how to best avoid back-wage issues in the H-1B context, in the event of a U.S. Department of Labor (DOL) investigation. This helps employers comply with the law and also helps employees maintain valid legal status in the United States.
1. Employer's Obligations under the H-1B and LCA
In order to employ an H-1B worker, the employer must obtain approval of a Labor Condition Application (LCA) from the DOL. Stipulated in the LCA are the wage levels and working conditions the employer guarantees to the H-1B worker for the period of his/her authorized employment. By signing and filing the LCA, an employer attests that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B worker.
Thus, the employer must take appropriate steps to avoid continued liability wages if it is determined necessary to terminate the H-1B worker. The same is true when the employer must reduce the employee's hours below the range set forth in the LCA.
2. Wage Obligation Runs until Real Termination
The DOL regulation, which addresses the termination of the wage obligation once it is triggered, states that the employer must pay the required wage until a real termination is effected. The regulation does not define "real termination," but it references USCIS regulations requiring notification upon termination of employment, as well as the payment of return airfare.
The DOL Administrative Review Board (ARB) took a strict view and found that it would be appropriate to assess back wages until the notification was sent to the USCIS. This was a significant determination, since the undisputed termination of employment occurred eight months earlier. Arguably, this goes beyond the requirements of the regulation.
3. Acceptable Evidence of Valid Termination
DOL enforcement guidelines reference a fact-specific determination for employment termination. The best evidence is the employer's notification to the USCIS of the employee's termination. If this has not been done, however, or is not available, the employer can present other evidence (such as a termination letter) to establish the date employment ceased. DOL investigators evaluate the evidence for credibility and sufficiency when making their determinations.
Obviously, the simplest, easiest, cleanest method for addressing the termination of an H-1B worker is to notify the USCIS via traceable transmission, retaining copies, proof of receipt, and any USCIS confirmation when it is finally issued. Employers that have terminated employees without following these steps should do so without delay.
Since they may have to rely upon alternative proof, if investigated, they should retain any relevant documents, such as termination letters, resignation letters, severance agreements, and other related correspondence. Termination before the date on the H-1B petition should also offer one-way return transportation home, in compliance with the law. http://www.greencardapply.com/news/news09/news09_1001.htm
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