- Employer Ordered To Pay $67,000 to Discharged H-1B Worker for Failure to Show "Bona Fide" Termination
- January 29, 2009 | Authors: Pierre Georges Bonnefil; Héctor A. Chichoni; Robert S. Groban; Jang Hyuk Im
- Law Firms: Epstein Becker & Green, P.C. - New York Office ; Epstein Becker & Green, P.C. - Miami Office ; Epstein Becker & Green, P.C. - New York Office ; Epstein Becker & Green, P.C. - San Francisco Office ; Epstein Becker & Green, P.C. - Miami Office
On December 3, 2008, the U.S. Labor Department's Administrative Review Board (ARB) issued its ruling in Mao v. Nasser Engineering & Computing Services, (ARB, No. 06-121, 11/26/08). In this decision, the ARB directed Nasser Engineering & Computing Services (NECS), a Texas technology firm, to pay one of its former H-1B employees more than a year’s back pay because NECS failed to effectuate this employee’s "bona fide termination" for H-1B purposes when he was discharged from the company.
As we have noted previously, employers seeking to terminate the employment of an H-1B worker before the validity period of the approved H-1B petition expires must effect a "bona fide" termination to limit their salary liability under the Labor Condition Applications (LCA) submitted for these cases. This requires the employer to offer the terminated employee "reasonable" transportation costs home and to notify the USCIS of the termination and request revocation of the approved H-1B petition. In this case, the ARB found that NECS had not reported the employee’s termination to the USCIS and thus was responsible for paying all remaining compensation due under its LCA for this employee. This amounted to $66,919.48 in back wages.