Skip to main content

Liable for Back Wages After Termination of H1B employee? Maybe Not Anymore!

By Anna Erwin, Associate Attorney

Has your employment been terminated while under H-1B status or have you terminated an H-1B employee? The standards under immigration law for what a previous H-1B employee can receive in back wages after termination are now significantly affected by whether the employee obtains subsequent employment after termination.

H-1B status is of particular benefit to foreign national employees in the U.S. because they can transfer their status to a new employer. An H-1B transfer employee also benefits the employer because that transferred employee does not count against the H-1B visa cap for that year. But if the employer/employee relationship is terminated during the employee's H-1B status, both sides must be aware of back wage eligibility or liability.

The Basis for Back Wage Liability

In Amtel Group v. Florida, Inc., the Administrative Review Board found that for an employer to avoid liability after the termination of an H-1B employee, the employer must: 1) expressly notify the H-1B employee of the termination; 2) notify USCIS that the employment relationship has been terminated so that the I-129 is cancelled; and 3) pay for the H-1B employee’s transportation home. If the employer does not follow these steps, it can be held liable for back wages to the employee, possibly throughout the duration of the employee's H-1B status.

However, a recent case, Batyrbekov v. Barclays Capital, held that employers are not liable for back wages when the employee successfully transfers his H-1B status to a new employer, even when the requirements of Amtel are not met.

In this case, the employee, Batyrbekov, was terminated by Barclays Capital. Barclays notified Batyrbekov of his termination but neglected to notify USCIS of the termination. Barclays also did not initially pay for Batyrbekov’s travel to his home country, but rather reimbursed him several months after he left the country.

Batyrbekov initiated his case to collect back wages, eight months after the termination, because Barclays did not follow the Amtel requirements for termination. Since Barclays did not follow the requirements, Batyrbekov thought he was going to get his back wages.

However, after Batrybekov was terminated, he transferred his employment under his H-1B status to another employer. This subsequent job fell through after Batyrbekov transferred, and Batyrbekov left the United States.

Impact for Both Employers and Employees

The Administrative Review Board found that, although Barclays did not follow the Amtel requirements, and Batyrbekov's subsequent employment to which he transferred fell through, Barclays was not liable for back wages. The ARB stated that when an H-1B employee is terminated but successfully transfers his H-1B status to another employee, the original employer's back wage liability ends once USCIS approves the change in the H-1B's employer.

The only requirement on behalf of the original employer is that the employee be expressly notified of termination. The other Amtel requirements do not have to be met to avoid back wage liability when the employee successfully transfers his H-1B to another employer.

The Batrybekov case is significant for employees and employers:

·         Employees whose termination does not meet the Amtel requirements who are offered other employment will want to be absolutely sure that the new job is stable before transferring status. Otherwise of claim on back wages may not be upheld.
·         Employers will want to investigate a past employee's subsequent employment if asked to pay back wages to ensure the legitimacy of the claim.

If you are an H-1B who has been terminated or an employer who has terminated an H-1B contact our immigration team to discuss your legal liabilities or options. 


Comments

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America.
The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds.
Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups:
Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans), we strongly rec…
Si usted es inmigrante (incluso un ciudadano de los EE.UU.), aquí hay 9 cosas que usted debe saber.

¿Es usted un ciudadano estadounidense naturalizado, residente legal permanente, titular de una visa o inmigrante indocumentado? Le recomendamos que tome los siguientes pasos para protegerse de nuestra versión actual de América.
Las últimas semanas hemos recordado a los inmigrantes, incluso a los ciudadanos estadounidenses naturalizados, que no nacieron en los Estados Unidos. Nuestra oficina ha recibido innumerables llamadas telefónicas, mensajes de correo electrónico y mensajes de medios sociales de personas preocupadas por el futuro de su familia en los Estados Unidos.
La mayoría de gente quiere saber qué puede hacer ahora para protegerse de lo que promete ser una ola de actividad anti-inmigración por parte del gobierno federal. La orden ejecutiva de Trump sobre la aplicación de la ley interior tiene algunas disposiciones que deberían hacer temblar a la mayoría de los estadounidenses. …

The DOJ Raised The Penalty Fee for Immigration Law Violations--Including Employer Sanctions

The Department of Justice announced an increase in fines for violations of the Immigration and Nationality Act, as the pertain to those sections that account for fraud, document abuse, and unfair immigration-related employment practices. While this is only an adjustment for inflation, it brings home the point that that poorly or incorrectly completing immigration forms, like the Form I-9, can lead to very costly fines from ICE and the Immigration Court. If you have any questions or concerns about I-9s in your company, please call the attorneys and Kuck Immigration Partners.  We have decades of experience representing employers in the ICE and DOL immigration investigations.  You can reach us at 404-816-8611 or at ckuck@Immigration.net.  




U.S.C. citation

Name/description

CFR citation DOJ penalty assessed after 8/1/2016 ($) 1 DOJ penalty assessed after 2/3/2017 ($) 2 8 U.S.C.     IRCA; Unfair immigration-related employment practices, document abuse (per individual discriminated against).     …