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H-1B Employer Back Wage Obligations: When to Call it Quits

Employers who undertake H-1B sponsorship obligations must be mindful of their duty to notify U.S. Citizenship and Immigration Services (USCIS) once the H-1B visa holder’s employment has terminated. An employer who fails to give the required notification may remain liable for paying the employee’s back wages pursuant to the underlying Labor Condition Application (LCA). But is an employer who has failed to request USCIS to withdraw the approved H-1B petition following the employee’s termination still on the hook for back pay for any period of time after the employee has secured new H-1B status pursuant to an H-1B petition filed by a subsequent employer? That was the question presented to the U.S. Department of Labor’s Administrative Review Board (ARB) in the recent case of In the Matter of Batyrbekov v. Barclays Capital.

Batyrbekov was the beneficiary of an approved H-1B petition filed by Lehman Brothers (Lehman). The H-1B approval authorized Batyrbekov to work for Lehman from October 1, 2007 to August 20, 2010. In September 2008, Lehman transferred Batyrbekov’s H-1B authorization to Barclays Capital (Barclays) pursuant to Barclays purchase of Lehman. On October 14, 2008, Barclays terminated Batyrbekov but continued paying him wages until January 10, 2009. Enter Advanced Human Resourcing, Inc. (AHR), which on January 7, 2009 filed an H-1B change of employer petition on Batyrbekov’s behalf that was approved by USCIS on January 21, 2009. Batyrbekov never went to work for AHR, and AHR’s H-1B petition was revoked by USCIS on February 19, 2009.

After Batyrbekov filed a complaint against Barclays in April 2009, Department of Labor’s Wage and Hour Division (WHD) investigated and determined that Barclays owed Batyrbekov back wages from October 15, 2008 to March 31, 2009 to the tune of $9,707.24. Not satisfied with WDH’s determination, Batyrbekov requested a hearing before an Administrative Law Judge (ALJ), who ruled that Batyrbekov was entitled to back pay until March 4, 2009 only. The ALJ did not disturb WHD’s determination as to the amount of back pay because Barclays failed to follow procedures for requesting a hearing. Notwithstanding the ALJ’s decision, Batyrbekov lodged an appeal with the the ARB.

The ARB affirmed the ALJ’s decision and order, holding in pertinent part that Barclays’ obligation to pay back wages ceased by January 21, 2009, after (1) Barclays had already notified Batyrbekov that his employment was being terminated and (2) USCIS approved AHR’s H-1B petition. That approval, coupled with Barclays’ unequivocal termination of Batyrbekov, left no possibility for Batyrbekov to recover any more monies from Barclays through enforcement of the LCA. In this case, a messy (and expensive) rendezvous with an former employee could have been avoided with a simple letter to USCIS timely delivered.

The Law Office of Timothy D. Widman represents clients in employment-based immigration matters, including the preparation and filing of H-1B petitions; call our office to schedule a consultation.

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