Major win in one of our office's cases involving back pay for an H1-B non-immigrant foreign national employee. Our office filed an U.S. Department of Labor complaint, which was initially denied after the Sacramento Field Office Investigator, Sheila Creel, found no violation of federal immigration law. We appealed the decision to the DOL Office of Administrative Law Judge.
After a trial in early June, we received the written decision last week, which found all of our claims to be true and awarded our client around $160,000 in back pay, with interest.
Here is the link to the published decision
The ALJ ruled in our favor because the employer had never perfected a bona fide termination of our client and therefore remained liable for all back pay under the Labor Certificate Application they had signed under oath.
Here are the relevant CFR's and case law on this point.
Huang v. Ultimo Software Solutions, Inc., ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11, slip op. at 4 (March 31, 2011) (affirming the ALJ's finding that the employer \never effected a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii), as it must to be relieved of its obligation to pay [the beneficiary's] wages ); Amtel Group v. Yongmahapakorn (Rung), ARB No. 07-104, ALJ No. 04-LCA-006, slip op. at 2 & n. 4 (Jan. 29, 2008) [hereinafter Amtel II] (Order Denying Reconsideration); Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039, slip op. at 5 6 (Mar. 30, 2007); Amtel Group of Florida, Inc. v. Yongmahapakorn (Rung), ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 9 12 (Sept. 29, 2006) [hereinafter Amtel I];see also 65 Fed. Reg. 80,171 (Dec. 20, 2000) (The Department agrees that an employer is no longer liable for payments for nonproductive status if there has been a bona fide termination of the employment relationship.
The Department would not likely consider it to be a bona fide termination for purposes of this provision unless INS has been notified that the employment relationship has been terminated pursuant to 8 CFR 241.2(h)(11)(i)(A) and the petition canceled, and the employee has been provided with payment for transportation home where required by section 214(E)(5)(A) of the INA and INS regulations at 8 CFR 214.2(h)(4)(iii)(E). (italics in original)).
But see, Administrator, Wage & Hour Division v. Ken Technologies, Inc., ARB No. 03-140, ALJ No. 2003-LCA-15, slip op. at 4 5 (Sept. 15, 2004) (indicating that failure to notify the immigration authorities is not conclusive on the issue whether the employee was terminated). The Board es more recent decisions such as Amtel I, slip op. at 11 12, can't be reconciled with the idea that a bona fide termination can occur without all three elements. Yet the Board hasn't explicitly receded from Ken Technologies. 31 8 C.F.R. § 214.2(h)(11).
A regulation of the Secretary of Labor repeats the requirement an employer with an approved labor condition application must inform the immigration authorities \that the employment relationship has been terminated so that the [H-1B] petition is cancelled, incorporating that same immigration regulation. See 20 C.F.R. § 655.731(c)(7)(ii).