DOL’s Administrative Review Board Holds That Amtel Definition of Bona Fide Termination Cannot Be Strictly Applied to Cases Involving Multiple H-1B Employers
In Matter of Batyrbekov, ARB Case No. 13-013 (July 16, 2014), the Administrative Review Board (ARB) within the Department of Labor (DOL) held that Mr. Batyrbekov’s initial H-1B employer’s (Barclays Capital (Barclays)) obligation to pay back wages under its approved labor condition attestation (LCA) ended after it notified him of the termination of his employment and a new H-1B employer (Advanced Human Resourcing, Inc. (AHR)) secured authorization to hire him. The Board held that Barclays’s unequivocal termination of Batyrbekov’s employment, coupled with AHR’s approved H-1B petition, ended Barclays’ LCA wage obligations on January 21, 2009, the date U.S. Citizenship and Immigration Services (USCIS) approved AHR’s H-1B petition. Batyrbekov had argued that Barclays’ obligation continued until August 10, 2010, the expiration of his authorized period of H-1B employment with Barclays.
The Board explained:
Batyrbekov … argues that he is owed damages until August 10, 2010, the expiration of his authorized period of H-1B employment with Barclays. In support of his claim, he relies on a strict application of our decision in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006),1 which requires employers to meet three requirements to effect a bona fide termination of H-1B employment and end their obligations to pay wages promised under LCAs: (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled; and (3) provide the nonimmigrant with the reasonable cost of return transportation to his or her home country.
[T]he Board’s definition of bona fide termination announced in Amtel does not govern this case, where a new employer obtained USCIS’s approval to hire Batyrbekov after Barclays unequivocally notified him that it had terminated his employment. … [I]n Amtel, the ARB had no need to decide the requirements for effecting a bona fide termination, where the H-1B employee was positioned to start a new job with a new authorized H-1B employer, rather than returning to her home country.
Aside from the factual differences, the Amtel definition of bona fide termination does not properly account for the complexities that can arise in cases involving multiple H-1B employers. In 2000, the INA was amended by AC21,2 which allows for H-1B nonimmigrants to port to a new employer. The portability provisions do not place a limit on the number of times that an H-1B nonimmigrant may port employers. Thus, a strict reading of Amtel would suggest that each time an H-1B nonimmigrant ports to a new employer, the former employer would remain liable for back wages until it provides the nonimmigrant with the cost of return transportation. Instead, we think that back wage claims against a former employer must stop accruing if it is clear that the H-1B employee changes from one H-1B employer to another and USCIS approves the subsequent H-1B petition allowing for the change.
Our preceding observations compel us to find that the Amtel definition of a bona fide termination cannot be strictly applied to cases involving multiple H-1B employers. In this case, we find a 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.” The burden of proving the end of back wage liability remains with the employer. To clarify, we do not mean to suggest that an H-1B employer may ignore an obligation it might have to request that USCIS officially cancel an H-1B authorization after the H-1B employer terminated an H-1B’s employee’s employment. We can envision cases where an H-1B employer’s failure to notify USCIS of an H-1B employee’s termination could cause confusion as to whether the employment relationship is in fact ongoing. In this case, we see no such confusion in Barclays’s failure to notify USCIS in a timely manner.
[A]pplying the Amtel definition of bona fide termination to this case would ignore the significance of a subsequently-filed I-129 Form for a “change of employer.” … Logically, USCIS’s approval of a “change of employer” must end the previous H-1B employer’s obligation to pay wages and the cost of the H-1B employee’s return to his or her home country. … Like “change of employer,” USCIS’S approval of “new employment” would have the effect of stopping any previous H-1B employer’s back wage liability from further accrual.
The Board said the ALJ’s findings and the undisputed facts show, as a matter of law, that Batyrbekov could not legally be granted the right to work concurrently for both Barclays and AHR on January 21, 2009, because Batyrbekov was no longer working for Barclays when AHR filed its H-1B petition. Barclays notified Batyrbekov on October 14, 2008, that it was terminating his employment and he was no longer expected to report to work, and the last day he would be expected to be an “active employee” would be November 13, 2008. On January 7, 2009, AHR filed an H-1B petition to hire Batyrbekov, which USCIS granted on January 21, 2009. AHR had no factual basis to lawfully assert that it would be Batyrbekov’s “additional employer” on January 21, 2009, which would have granted him the authorization to work for, and receive back wages from, more than one H-1B employer. Based on the totality of facts, the Board held that Barclays’s obligation to pay LCA wages to Batyrbekov stopped at least by January 21, 2009, after it had given clear notice of the termination of his employment and USCIS had approved AHR’s H-1B change of employer petition.