Last Thursday, I represented the Prosecuting Party in a claim for an H1-B employment violation. Our office represented the foreign national who was the beneficiary of an I-129 petition for non-immigrant worker, status as an H1-B skilled professional.
The petition was approved for three years. However, before the employee's status as an H1-B began, the employer terminated the position. We filed a US Department of Labor complaint alleging the Respondent has impermissibly "benched" our client in violation of 20 C.F.R. § 655.731(c)(7)(i), as there was no bona fide termination because USCIS had never been notified and the H1-B status had not been cancelled.
The precedent decision on this question is Amtel Group of Florida v. Yongmahapakorn, ABR No. 04-087, ALJ No. 2004-LCA-006, 2006 WL 2821406 (ARB Sept. 29, 2006), at *7 (finding the Employer did not achieve bona fide termination within the meaning of the regulations and, therefore, did not terminate its liability for back wages when it fired an H1-B employee, but failed to notify INA of this termination in accordance with 8 C.F.R. § 214.2(h)(11).
We will receive the judge's decision within the next 30 days, but I am very hopeful of a win. The counsel for the Respondent Employer kept arguing for "offset" to the damage award.