The US department of Labor, or DOL, holds H-1B visa requirements for all employers of H1B employees. These include filing requirements for H-1B employers and termination requirements. Standard rules, such as the obligation to pay and H-1B visa employee until bona fide employment termination, were established in 2006 during the court case of Amtel v. Yongmahapakorn. In 2014, the case of Batybekov v. Barclays gave new ways to meet the requirement of bona fide H1B termination.
Bona Fide Termination Requirements
In the original Amtel case, the Administrative Review Board (ARB) stated bona fide termination typically required an employer to inform the worker and US Citizenship and Immigration Services of termination, as well as offer compensation for the reasonable costs of the H1B employee to return to his or her home country. Should an employer fail to comply with these specifications, the DOL may hold the employer liable for back wages until the H1B petition reaches its expiration date. To find a more complete overview of requirements for bona fide termination, consult the November 1, 2012 Murthy.com news brief, entitled Bona Fide Termination Requirement for H1B Employee.
Background on Batyrbekov v. Barclays
The 2014 case was between Kuamysh Batyrbekov, an H1B employee who held a job at Barclays Capital. Barclays failed to notify the US Citizenship and Immigration Services of Mr. Batyrbekov’s termination, and a separate company filed an H-1B visa petition on his behalf. While the petition was approved, Mr. Batyrbekov had returned home and secured new employment. Batrybekov then filed a formal complaint with the department of labor, accusing Barclays of owing him eighteen months of back pay, in addition to other claims. He based his alleged back wages on the expiration date of the LCA and H1B petition, and argued Barclays was liable as they failed to complete the necessary steps to ensure bona fide termination.
New Way to Show Bona Fide Termination Requirements are Met
After an appeal, the ARB acknowledged the failure of Barclays to notify US Citizenship and Immigration Services of the termination of Mr. Batyrbekov’s. However, the board concluded that “…the Amtel definition of a bona fide termination cannot be strictly applied to cases involving multiple H1B employers.” Through their rejection of Mr. Batyrbekov’s back wages, the ARB provided a new way of meeting bona fide termination specifications. The ARB decided a bona fide termination can occur if the employer can prove the notification of the H1B employee and the USCIS approves a petition of change of employer for the worker in question.
Fulfilling Amtel Requirements Still Recommended
Regardless of the Batybekov v. Barclays ruling, H1B employers are advised to maintain the bona fide termination requirements originally established in Amtel v. Yongmahapakorn. While the Barclays exception may seem like a way to reduce employer liability, the ARB stresses proof of notification is rested solely on the employer. The ARB also emphasizes the possibilities of special situations, such as the H1B employee holding concurrent employment, could cause problems. If an employee holds concureent employment, an approved petition, filed by a different company, may not clear the original employee of liability.
Conclusion
While the 2014 case may be beneficial to employers is specific situations,
The 2006 case requirements should be used. The Barclays case shows how the overlooking of a seemingly small detail can lead to serious economic consequences for an H1B employer. H-1B employers should always consult with a qualified immigration attorney for more guidance.
Beeraj Patel, Esq.
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