News Update - January 17, 2009

By Alan Lee, Esq.

Employer Held Liable For the Payment of Back Wages to Terminated H-1B Employee

The Administrative Review Board of the Department of Labor found that an employer who failed to report the termination of a H-1B employee to the Department of Homeland Security (DHS) as required by law was liable for back wages to the employee. In order to comply with the laws of the Immigration and Nationality Act, an employer who hires an H-1B nonimmigrant employee must make a bona fide termination of the employment relationship so as not to be held liable for back wages and in some cases the transportation costs for the employee to return to his home country. A bona fide termination means notifying DHS that the employment relationship has ceased. Reporting only to the Department of Labor is not sufficient. DHS must be informed so that the Petition for a Nonimmigrant Worker filed by the employer can be revoked.


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2009 Alan Lee, Esq.

 

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