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 Applicatio
n (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 appropriat
e 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 Terminatio
n
The DOL regulation
, which addresses the terminatio
n of the wage obligation
once it is triggered,
states that the employer must pay the required wage until a real terminatio
n is effected. The regulation
does not define "real terminatio
n," but it references
USCIS regulation
s requiring notificati
on upon terminatio
n of employment
, as well as the payment of return airfare.
The DOL Administra
tive Review Board (ARB) took a strict view and found that it would be appropriat
e to assess back wages until the notificati
on was sent to the USCIS. This was a significan
t determinat
ion, since the undisputed
terminatio
n of employment
occurred eight months earlier. Arguably, this goes beyond the requiremen
ts of the regulation
.
3. Acceptable
Evidence of Valid Terminatio
n
DOL enforcemen
t guidelines
reference a fact-speci
fic determinat
ion for employment
terminatio
n. The best evidence is the employer's
notificati
on to the USCIS of the employee's
terminatio
n. If this has not been done, however, or is not available,
the employer can present other evidence (such as a terminatio
n letter) to establish the date employment
ceased. DOL investigat
ors evaluate the evidence for credibilit
y and sufficienc
y when making their determinat
ions.
Obviously,
the simplest, easiest, cleanest method for addressing
the terminatio
n of an H-1B worker is to notify the USCIS via traceable transmissi
on, retaining copies, proof of receipt, and any USCIS confirmati
on 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 alternativ
e proof, if investigat
ed, they should retain any relevant documents,
such as terminatio
n letters, resignatio
n letters, severance agreements
, and other related correspond
ence. Terminatio
n before the date on the H-1B petition should also offer one-way return transporta
tion home, in compliance
with the law. http://www
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