On July 18, 2003, the Department of Labor (DOL) issued a decision awarding back pay to an H-1B employee whose employer failed to notify BCIS of the employee's termination even though the employee was notified directly of the employment termination.  In Matter of Ken Technologies, Case No. 2003-LCA-00015, the employer's noncompliance with the notification requirement led the judge to find that the termination was not bona fide.  As a result, the employer's obligation to pay the H-1B employee continued because BCIS was not notified.

Under federal regulations applicable to the H-1B visa petition, an employer is required to pay an H-1B nonimmigrant employee beginning on the date when the nonimmigrant enters into employment with the employer, or 30 days after the nonimmigrant is first admitted to the U.S. If the nonimmigrant is present in the U.S. on the date of the approval of the petition, the employer's wage requirement begins 60 days after the date the nonimmigrant becomes eligible to work for the employer.  Additionally, if the H-1B employee is in nonproductive status due to a decision by the employer (otherwise known as "benching"), the employer is still required to pay the employee the full amount of the weekly salary at the required wage listed on the Labor Condition Application (LCA).

In this case, although the employer had clearly notified the employee of the termination, the company never notified BCIS that it wanted to withdraw the approved H-1B petition.  The judge determined that a bona fide termination of H-1B employment occurs only when an employer notifies BCIS of the termination of the employment relationship.  Since the employer in this case did not notify BCIS, a "benching" situation, rather than a bona fide termination, occurred.  Therefore, the employer was required to pay the H-1B employee for the unproductive time the H-1B employee was present in the U.S. 

Matter of Ken Technologies underscores the importance of notifying the BCIS if an employer decides to terminate an H-1B's employment before the end of the employee's authorized period of employment.  If BCIS is not notified of the termination, the obligation to pay the former H‑1B employee may continue. Such notification should be sent regardless of whether the termination was voluntary or involuntary.

Consequently, we urge you to submit a withdrawal notification when any H-1B nonimmigrant's employment is terminated. There is a sample letter on our website under "employer issues" that you may use for this purpose. Please contact our office if you have any questions or require assistance.

© 1999-2012, Jackson & Hertogs - All rights reserved