Tag Archive for: Bona Fide Termination

Cyrus Mehta

DOL Fails to Side with H-1B Worker who Claimed Back Wages Against Employers After Being Terminated

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

H-1B workers can file complaints against employers to the Department of Labor if they are not paid the promised wage.  One H-1B worker filed complaints against two of his employers, Metromile, Inc, and Hinge Health, for back wages. When the worker was not satisfied with the initial decisions, he appealed them to an Administrative Law Judge (ALF). The ensuing decisions of the ALJ limiting back wages to the worker are instructive as the DOL will not always side with H-1B workers who claim back wages against their employers on grounds that they had not been properly terminated under technical DOL rules.

In Jain v. Metromile, Inc., ALJ Case No. 2021-LCA-00018 (July 19, 2022), the worker sought back wages after being terminated by his employer, Metromile. He accused his employer for not effectuating a bona fide termination, which required the employer to continue to pay him the wage.  Under the Labor Condition Application that is submitted with the H-1B petition, an employer must pay the required wage that has been promised in the LCA until the employer terminates the H-1B worker.

Earlier, in  Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006), the Administrative Review Board (ARB)) held that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii):  (1) the employer must expressly terminate the employment relationship with the H-1B worker,  (2) the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11), and (3) the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). The ARB in Amtel held that an employer can still be obligated to pay an H-1B worker back wages if it explicitly terminates his employment but fails to notify USCIS of the termination and/or pay for the employee’s return transportation.

Metromile had not paid for the worker’s return transportation to India and did not notify USCIS that his employed had been terminated until long after the fact. A few months after the worker was fired by Metromile, a second employer, ForeThought, filed an H-1B change of employer petition on his behalf, which got approved. The ALJ held that a “bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified an H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a ‘change of employer’.” Because the worker was aware that he had been terminated by Metromile and had no present need to leave the United States given that he was to begin work for a new employer in H-1B status, the ALJ did not find his previous employer liable for his return transportation costs. Moreover, the court held that Metromile was liable for back wages only for the period from the worker’s termination until the change of employer petition filed by ForeThought was approved, at which time a bona fide termination had been effectuated.

Jain v. Metromile reinterprets Amtel Group of Fla., Inc. v. Yongmahapakorn. The ARB in Amtel held that an employer can still be obligated to pay an H-1B worker back wages if it explicitly terminates his employment but fails to notify USCIS of the termination and/or pay for the employee’s return transportation. In a previous blog, we discussed Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017), which had previously modified the ARB’s holding in Amtel. In Vinayagam, the ARB held that an employer’s failure to pay return transportation costs for a terminated H-1B employee was not fatal when the worker voluntarily decided not to return to her home country but instead remained in the U.S. and sought H-1B status through a new employer.

In Jain v. Metromile, the ALJ held that the “Amtel definition is not the only means of making a bona fide termination.” Citing Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ Case No. 2011-LCA-025, slip op. at 10 (ARB) July 16, 2014, the ALJ held that when there are multiple H-1B employers, a strict reading of Amtel would render a former employer liable for back wages even if the H-1B worker changes employers, and this former employer would remain liable until the H-1B worker was provided the return transportation costs. Thus, when USCIS approves a “change of employer” petition, the back wage claim against the former employer stops accruing. Batyrbekov v. Barclays Capital involved an H-1B worker who was terminated by Barclay’s Capital, which failed to notify USCIS of the termination. Though another employer filed an H-1B petition on his behalf, Batyrbekov never began working for this employer. Batyrbekov sought back wages, but the Administrative Review Board (ARB) found that Barclays’ liability ended on the date that an H-1B petition filed by a new employer was approved on Batyrbekov’s behalf. The ARB held that “the Amtel definition of a bona fide termination cannot be strictly applied to cases involving multiple H-1B employers”. The ARB further opined that a bona fide termination can occur when an employer expressly notifies an H-1B worker that his employer is terminated and a new employer then files an H-1B “change of employer” petition for the worker that is approved by USCIS.

In January 2020, the worker began working for a third employer employer, Hinge Health. See Jain v. Hinge Health, Inc., ALJ Case No. 2021-LCA-00015 (July 19, 2022). Hinge Health terminated theworker in October 2020 and he filed a complaint to the DOL, which found that Hinge Health had failed to pay the worker the required back wages in violation of 20 C.F.R. § 655.731 and had failed to either “offer equal benefits or equal eligibility for benefits or both” in violation of 20 C.F.R. § 655.731(c)(3). The worker appealed, arguing that Hing Health owed him additional back pay.  The worker alleged that the company failed to pay for his return transportation to his home country, failed to inform USCIS of his termination, and did not timely notify him of the withdrawal of his LCA. Shortly after his termination, the worker had signed a “Confidential Severance and General Release Agreement” in which he agreed to absolve Hinge Health of any claims under federal or state law. The ALJ found that this broad waiver precluded the worker from pursuing any of the claims he had raised, including the alleged LCA violation, and accordingly dismissed the case. The ALJ relied on Gupta v. Headstrong, ARB Case Nos. 15-032, 15-033 (ARB Jan. 26, 2017), which involved a claim for back wages by a terminated H-1B employee who had signed a similarly broad release agreement. In Gupta, the ARB held that the release agreement was valid and barred recovery, noting that it “did not have authority to adjudicate collateral attacks on a facially valid contract and that Gupta had ‘evoked no statute, regulation, or precedent authorizing’ it to do so”.  Additionally, the ALJ found that Hinge Health had fulfilled its duty to inform USCIS that Mr. Jain’s employment had been terminated, even though it did so several months after the fact. Hinge Health was not required to pay for Mr. Jain’s return transportation because he never intended to leave the country. Even if the release agreement is not upheld, the ALJ found that Hinge Health would not be liable for the worker’s return transportation costs because he did not intend to return to his home country and instead had immediately begun seeking new employment in the United States following his termination. Interestingly, the ALJ in both cases found that the worker was not a credible witness. In Jain v. Hinge Health, the ALJ determined that the worker’s testimony regarding whether he had hired attorney to assist him and the timeline in which he found another job was unreliable. Similarly, in Jain v. Metromile, the ALJ did not find the worker’s statements regarding when his complaints were filed to be credible.

Both the decisions limited liability for the employer where the H-1B worker claimed that his termination was not effective by not following the steps set forth in Amtel. In Jain v. Metromile, an employer is no longer liable for back wages once the H-1B employee obtains an approval of an H-1B change of employer petition even if the employer did not notify the USCIS or provide return transportation costs prior to the transfer to the new employer. In Jain v. Hinge Health, a properly drafted release agreement can absolve the employer of liability under the LCA.

* Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners, PLLC. She is admitted to practice in New York.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

 

 

 

Cyrus Mehta

FAQ on Changes in Salary and Other Working Conditions for H-1B Workers During the COVID-19 Crisis

/0 Comments/in /by

The novel coronavirus (SARS-CoV-2), which causes the disease COVID-19, is a pandemic threatening populations in the United States and worldwide. The US economy has virtually shut down.   Many employers who have been forced to shut down or modify their businesses have been severely impacted and may no longer be able to afford to pay H-1B workers the required wage.  Based on my recent observations, many employers fortunately still view H-1B workers as a vital resource and do not wish to terminate their H-1B workers. They, however, do want to know whether they can temporarily reduce wages or temporarily suspend employment or put them on furlough. Likewise, H-1B workers fearful of termination also have questions about grace periods and unemployment benefits.

Although none of us have seen a pandemic as fast moving and horrific as COVID-19 in our lifetimes, we have experienced the rigidity of DOL rules governing H-1B workers in other disasters such as 9/11, the Great Recession of 2008 and Hurricane Sandy. For instance, an employer is not permitted to bench an H-1B worker for a temporary period due to economic hardships without risking liability for back wages and other draconian sanctions. Correspondingly, the H-1B worker could also be in danger of falling out of status if no longer employed.  In prior disasters, the inflexibility of the DOL rules governing the wages and other working conditions of H-1B workers came into sharp focus and caused great hardship to employers and the H-1B workers. These rules have not changed, and the same inflexible rules unfortunately equally apply with equal force today during the COVID-19 crisis, which appears to be far worse than other recent disasters.

Below are frequently asked questions (FAQ), which I will endeavor to answer. Since there are plenty of grey areas with no definitive answers, my interpretations of these rules are based on my experience in advising employers and H-1B workers during past disasters and presently during the COVID-19 crisis.  I also refer readers to two excellent AILA practice advisories on this topic, here and here. It is hoped that the DOL and USCIS will provide more flexibility and compassion given that the COVID-19 crisis is worsening. But until that happens, here are my responses.

1. Must I Pay H-1B Workers Even if I Want to Temporarily Suspend Employment During the COVID-19 Crisis?

An employer can incur liability if an H-1B worker is in nonproductive status. According to 20 CFR 655.731(c)(7)(i),   if the H-1B worker is in nonproductive status due to a decision of the employer, such as lack of work or lack of a permit or license, the employer must still pay the H-1B worker the required wage. Thus, if the employer decides to temporarily suspend employment, bench or furlough the employee, the required wage must still be paid notwithstanding the sudden economic downturn caused by the COVID-19 pandemic. Failure to pay the required wage can result in fines, back wage obligations, and in some serious cases debarment from the DOL’s temporary and permanent immigration programs for a period of time. Pursuant to 20 CFR 655.810(d), DOL can also notify USCIS to no longer approve immigrant and non-immigrant petitions filed by the employer.

2. What if the H-1B worker voluntarily requests leave?

Under 20 CFR 655.731(c)(7)(ii), an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience, such as taking an extended holiday or caring for ill relative,  or because they are unable to work, as a result of maternity leave or automobile accident which temporarily incapacitates the H-1B worker due to a reason which is not directly work related and required by the employer. 20 CFR 655.731(c)(7)(ii) nevertheless requires the employer  to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).

While leave based on a COVID-19 illness or related need to quarantine will also be considered a leave upon the behest of the employee, employers will most likely need to treat H-1B workers in the same way as they would with other employees under their COVID-19 leave policies, and will also be subject to the CARES Act that guarantees extended paid leave to all employees relating to COVID-19 illness or quarantine.

So long as the H-1B worker is employed, being on leave, paid or unpaid, will not undermine their ability to maintain H-1B status.

The DOL will carefully investigate whether the employee’s request for leave is genuine. The leave should not be forced upon the employee as a pretext for the employer’s inability to pay the required wage due to lack of work. Such contrived leave would be viewed as a decision by the employer to place the worker in unproductive status, thus rendering the employer liable for sanctions.

3. Can the employer temporarily reduce the wage?

The required wage should be the higher of the actual or prevailing wage, which is determined at the time of filing the Labor Condition Application (LCA). The actual wage is the wage paid to similarly situated workers in the employer’s organization within the area of intended employment. The prevailing wage is the wage rate for the occupational classification in the area of employment, which is generally based on a wage survey of a cross section of employers.

What if the employer wishes to drop the required wage below what was indicated in the LCA and the I-129 petition for H-1B classification? This supposes that the required wage is still at or above the prevailing wage, although the actual wage paid to similarly situated workers has dropped. Since the employer represented on the forms that it would pay a specific required wage, it may not be prudent to reduce the wage even if it is still meets the definition of the required wage. Under these circumstances, the safest course of action is to file an amendment to the H-1B petition.

Another argument that can be made against amending the H-1B petition when there is a reduction in the required wage from what was stated on the forms is that when the required wage increases during the validity period of the H-1B, an employer is not required to file an amendment to the H-1B petition and so the same argument can be made against an amendment when there is a reduction in the wage, so long as it still is the required wage. This argument would have greater force if the H-1B worker’s salary went up after the LCA was filed and it is  now  being reduced to the wage that was stated on the LCA and Form I-129.

4. Can the employer convert the employment of the H-1B worker from full time to part time employment?

Yes, although the employer will be required to file an amended H-1B petition. Converting the employment from full time to part-time employment would be considered a material change as the employer must obtain a new LCA reflecting the part time wage and employment, and thus file an amendment to the H-1B petition under USCIS guidance based on Matter of Simeio Solutions. The H-1B worker can commence with the part-time employment upon the filing of the amended H-1B petition.

5. Can the employer reduce the wage during the COVID-19 period, but still guarantee a bonus to the H-1B worker later on to make up the deficit?

If the employer lowers the salaries for H-1B employees below the required wage, according to 20 CFR 655.731(c)(2)(v), an employer can give a guaranteed bonus in the future that may be credited toward satisfaction of the required wage obligation. The bonus cannot be conditional or contingent on some event such as the employer’s annual profits.  While I would never advise this in normal times, I believe in these unusually hard COVID-19 times, this may be defensible but one cannot tell for sure how DOL will view it if there is an investigation. Once the bonus is paid, it must be paid as a salary and reported as earnings with appropriate taxes and FICA contributions withheld and paid.

6. May the employer reduce the required wage and instead offer the equivalent value of the deficit in stock options?

No. The employer is required to guarantee the required wage, and this must be paid in the form of wages reported to the Internal Revenue Service (IRS) as the employee’s earnings, with appropriate withholding for the employee’s tax paid to the IRS and as required under the Federal Insurance Contributions Act (FICA). A stock option would not guarantee the required wage as the value of a stock option can go up or down. A stock option also does not comply with the requirement that the compensation must be paid as a wage that is reported to the IRS, and appropriate tax and FICA contributions be withheld.

7. Does the employer’s obligations to pay the H-1B worker end when the H-1B worker’s employment is terminated?

The H-1B worker need not get paid if there has been a bona fide termination of the employment relationship. DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)). If the employer does not notify the USCIS about the termination and provide the employee with payment for the return transportation home, the DOL will not consider it as a bona fide termination and may still hold the employer liable for back wages. However, note that in Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

For further details on effectuating a bona fide termination and the exceptions to meeting all the requirements, see “Employer Not Always Obligated to Pay Return Transportation Costs of Terminated Worker”, https://blog.cyrusmehta.com/2017/03/employer-not-always-obligated-to-pay-return-transportation-cost-of-terminated-h-1b-worker.html

8. Is the H-1B worker entitled to a grace period upon termination of employment?

8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

When an H-1B worker is terminated, it is a common practice for a highly compensated employee to first be put in inactive status, known as “garden leave” but still considered as an employee and paid the full salary. The final termination date occurs at a later point. Although one needs to view these scenarios on a case by case basis, a good argument can be made that the 60 day grace period starts running from the final termination date and not from the date when the H-1B worker was placed on garden leave.

For further details on the 60 day grace period, see “Analysis of the 60 Day Grace Period for Nonimmigrant Workers”, https://blog.cyrusmehta.com/2017/07/analysis-of-the-60-day-grace-period-for-nonimmigrant-workers.html

9. Can the employer rehire the H-1B employee within 60 days of the termination?

If the H-1B worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, the same employer would need to file a new H-1B petition within the 60-day grace period.

10. Since most H-1B workers are required to work from home, what rules govern and what actions does the employer need to take?

Employers who have instructed their employees to work from home must ensure they still comply with Department of Labor rules about the geographic scope of positions; for example, as specified for H-1B (specialty occupation) employees on the labor condition application.

If an employee works from a home which is within commuting distance of the workplace, then there is no need to file an amendment. However, a copy of the original posting should be posted again in two places in the employee’s home, although it does not make sense to do so since the posting cannot be seen by other employees. Until the DOL provides clarification, following this procedure would be in compliance.  Alternatively, the employer may provide electronic notification to affected workers in the area of intended employment.

If an employee works from a home which is NOT within commuting distance from the workplace, the employer should obtain a new LCA for that location and file an H-1B amendment. Since there is a 30 working day short term placement exception (per year), the employer can file the amendment within 30 working days of the move to a home location that is not within commuting distance.

On how to effectuate a compliant electronic notification, see the “Nuts and Bolts of Complying with the H-1B Notice Requirements”, https://blog.cyrusmehta.com/2019/03/the-nuts-and-bolts-of-complying-with-the-h-1b-notice-requirements.html . An employer can post notice on its own website or on a web portal of an LCA hosting service, but must still inform affected workers of the existence of this web posting through notification via e mail, the company intranet,  through Slack channels or by providing hard copy notification of the existence of the notice on the website.

Although notice must be provided before the H-1B worker begins work at the new location, the DOL has allowed to a 30 day extended period to provide such notice. For further details see # 4 of DOL’s recently issued COVID-19 guidance at https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

 

11. Do these regulations apply to other workers in nonimmigrant statuses who may be employed?

They would apply to any nonimmigrant visa statuses that require an underlying LCA such as the E-3 for Australians and the H-1B1 for  nationals of Singapore and Chile. The same rules governing wages and other working conditions for H-1B workers would apply to workers in E-3 or H-1B1 status.

There is more flexibility with respect to workers in nonimmigrant statuses. For example, if an intracompany transferee’s in L-1A or L-1B status is reduced, it may not have an adverse impact so long as the L-1 worker is still working under the appropriate L-1 classification as an executive or manager, or as a specialized knowledge employee.

However, if there is cessation of employment, other nonimmigrant workers will fall out of status after the 60 day grace period.

12. Can Terminated H-1B Workers Claim Unemployment Benefits?

Although one must look at state rules, generally speaking, H-1B visa holders cannot claim unemployment benefits because they will not be able to work in the future due to the loss of their status as a result of the loss of the job. The legal status of an H-1B workers is based on employment, and once the H-1B worker is terminated, they are not able to work in the future due to lack of that status.

On the other hand, unemployment benefits may work for an H-4 spouse with an EAD if the H-1B spouse is in status. The H-4 spouse’s ability to work in the future is linked to the H-1B status of the spouse, and if the H-4 spouse is terminated, s/he can work in the future if the H-1B spouse continues to maintain that H-1B status. Of course, one has to look at the state rules concerning unemployment insurance regarding how long one will be able to work in the future in order to be eligible to make such a claim.

If an H-4 spouses can claim unemployment benefits, they will likely not be impacted by the new public charge definition as unemployment is not a public benefit. One has earned the unemployment insurance by contributing to it while employed.

This blog is for informational purposes and should not be relied upon as a substitute for legal advice. 

Cyrus Mehta

Employer Not Always Obligated To Pay Return Transportation Cost Of Terminated H-1B Worker

/0 Comments/in /by

In Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

When filing a Labor Condition Application (LCA) – a necessary first step in the filing of an H-1B visa petition – the employer attests that it will pay the required wage to the H-1B nonimmigrant worker. See INA 212(n)(1)(A); 20 CFR 655.731(a). The required wage must be paid until there is a bona fide termination of the employment relationship. In order to demonstrate such a bona fide termination of the employment relationship, the ARB held in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii). First, the employer must expressly terminate the employment relationship with the H-1B worker. Second, the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11). Third, the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). If the employer otherwise explicitly terminates the employment relationship, but fails to follow the second and third steps, the employer may still be obligated to pay the required wage for failure to effectuate a bona fide termination. Although in the real world the employer must only undertake step one, in the case of an H-1B worker, the employer must also take steps two and three that have been mandated by the Department of Labor (DOL).

It is the third prong that has been the subject of much interpretation.  Must an employer still offer to pay the return transportation costs even if the worker chooses to remain in the US on his or her own volition? In Vinayagam v. Cronous Solutions, the terminated H-1B worker did not leave the United States on her own volition and unsuccessfully applied for H-1B status through another employer. Prior to this unsuccessful attempt, the worker sought to apply for B-2 visa status, which was also denied. The employer under this scenario was not required to pay the return transportation costs home, and thus was not liable to continue to pay the required wage after the employer fulfilled steps one and two. This decision follows a line of other ARB decisions where the employer was not obligated to pay the return transportation costs where the H-1B worker had married a US citizen and adjusted her status to permanent residence or where the worker found an employer to file another H-1B petition and thus extend H-1B status through that employer or where the H-1B worker outright rejected the reimbursement. If the H-1B worker voluntarily terminates employment prior to the expiration of the authorized H-1B stay or is dismissed when the authorized stay has ended, the employer is not liable for return transportation costs. See Toia v. Gardner Family Care Corp., 2007-LCA-6 (April 25, 2008).

It is intriguing that the Department of Labor has latched on to USCIS rules for requiring a bona fide termination of employment. The employer’s obligation to pay the wage is an obligation under DOL rules, but in determining the employer’s ending of that obligation, the DOL has relied on the rules of United States Citizenship and Immigration Services (USCIS), which includes notification to the USCIS that results in the revocation of the H-1B petition (8 CFR 214.2(h)(11) and payment of the return transportation home obligation (8 CFR 214.2(h)(4)(iii)(E). Naomi Schorr has astutely observed that when one agency engages in interpreting and enforcing the rules of another agency, courts will not defer to that agency’s interpretation. See Schorr, It Makes You Want To Scream: Overstepping Bounds: The Department of Labor and the Bona Fide Termination of H-1B Employees, Bender’s Immigration Bulletin, Oct. 15, 2014. Indeed, in a 1999 exchange of correspondence between a private attorney and the INS, the response was that the “Service views the return transportation provision as a private contractual issue between the petitioner and the beneficiary. As a result, the Service has not developed any policies with respect to the questions that you have raised.” See Letter from Thomas W. Simmons, Chief, INS Business and Trade Services Branch to Robert A. Klipstein (May 20, 1999), reprinted in 70 Interpreter Releases 1140 (July 26, 1999).

While the USCIS does not give this rule any teeth, the DOL has chosen to enforce it against an employer if the employer cannot demonstrate that the H-1B worker chose to stay in the US on his or her own volition. In fact, notwithstanding Vinayagam v. Cronous Solutions, unless it is clearly indicated that the worker chooses to remain in the US, it would be prudent for the employer to give the benefit of doubt to the H-1B worker and offer the return transportation costs home. These cases have shown that the employer must always go through protracted litigation to establish that the H-1B worker voluntarily stayed on in the US in order to escape back wage liability. Moreover, the burden is on the employer to demonstrate whether it had a duty to provide the return transportation costs and whether it had satisfied that requirement. See Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039 (ARB Mar. 30, 2007).

The High Skilled Worker Rule that took effect on January 18, 2017 provides for a 60 day grace period to H-1B as well as other nonimmigrant workers holding E-1, E-2, E-3, H-1B1, L-1 or TN status. See 8 CFR 214.1(2). The 60 day grace period is indeed a salutary feature. Up until the rule took effect, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

The new 60 day grace period may incentivize the H-1B worker to remain in the US, and thus enable an employer to escape paying the return transportation costs. On other hand, it should not be viewed as a green light to never offer the return transportation costs home. While the 60 day grace period does allow a terminated worker some cushion in finding another employer in the US, it also provides a cushion for the worker to leave the United States less abruptly if terminated prior . In the latter situation, the employer’s failure to offer return transportation costs home could still render the employer liable for back wages as a result of not effectuating a bona fide termination.