DOL decision addresses H-1B termination of employment and employer’s obligations
The Department of Labor (DOL) Administrative Review Board (ARB) recently published a decision addressing H-1B visa issues relating to termination of employment and prevailing wage. Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06).
Read the full ARB decision (.pdf, 125.4K)
The ARB decision was based on an appeal by an H-1B employer (Amtel) of an adverse ruling from the Administrative Law Judge (ALJ) holding that Amtel had not effected a “bona fide termination” of its employment relationship with the employee (Rung), and therefore, awarded Rung back wages (see original ALJ ruling from 2004). The ARB affirmed the ALJ’s decision in part and reversed in part. Read excerpts below:
1. Did Amtel properly pay Rung the prevailing wage of an internal auditor?
2. Did Amtel effect a “bona fide termination”of its employment relationship with Rung?
3. Does Amtel owe Rung for unreimbursed rental expenses, monthly food and laundry expense allowances, and work-related expenses?
Amtel fulfilled its required wage obligation to Rung under the INA, since it paid her the prevailing wage of an internal auditor, the job description identified on the only LCAs pursuant to which Rung’s H-1B visa had been approved. But Amtel did not effectuate a “bona fide termination”of its employment relationship with Rung under the INA because there is no evidence that Amtel notified the INS that it had terminated Rung and that Amtel provided Rung with payment for her transportation home. Accordingly, it is ORDERED that Amtel pay Rung the prevailing wage for an internal auditor, at the rate of $52,041 per year, until the expiration of her authorized period of stay for H-1B employment on November 28, 2004, plus prejudgment compound interest on the back pay it owes and post judgment interest until satisfaction, but Amtel is entitled to receive credit for any amount of this required wage obligation which it has previously paid to Rung. SO ORDERED.