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
Post a Comment