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.
Hi Chuck, what if the employer files the H1B transfers the person to India/China and keeps paying them in local currency other than USD for 11 months and then terminate while the employee is working abroad. Does H1 B back pay wages need to be given to the employee for those months? As technically he was on H1 B for all those months, but again the same employer paid the salary to him/her for working in their offshore branch where the transfer was done.
The employer has NOT liability for back wages under the H-1B UNLESS the employee is IN the United States. If the employee is outside the United States, no H-1B wage protections apply.