http://www.greencardapply.com/news/news09/news09_1001.htm
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 Application (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 appropriate 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 Termination
The DOL regulation, which addresses the termination of the wage
obligation once it is triggered, states that the employer must pay the
required wage until a real termination is effected. The regulation
does not define "real termination," but it references USCIS
regulations requiring notification upon termination of employment, as
well as the payment of return airfare.
The DOL Administrative Review Board (ARB) took a strict view and found
that it would be appropriate to assess back wages until the
notification was sent to the USCIS. This was a significant
determination, since the undisputed termination of employment occurred
eight months earlier. Arguably, this goes beyond the requirements of
the regulation.
3. Acceptable Evidence of Valid Termination
DOL enforcement guidelines reference a fact-specific determination for
employment termination. The best evidence is the employer's
notification to the USCIS of the employee's termination. If this has
not been done, however, or is not available, the employer can present
other evidence (such as a termination letter) to establish the date
employment ceased. DOL investigators evaluate the evidence for
credibility and sufficiency when making their determinations.
Obviously, the simplest, easiest, cleanest method for addressing the
termination of an H-1B worker is to notify the USCIS via traceable
transmission, retaining copies, proof of receipt, and any USCIS
confirmation 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 alternative proof, if investigated,
they should retain any relevant documents, such as termination
letters, resignation letters, severance agreements, and other related
correspondence. Termination before the date on the H-1B petition
should also offer one-way return transportation home, in compliance
with the law.
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