When an H-1B Employer's Wage Obligation Ends

The wage the employer promised. An H-1B employer commits on the labor condition application to pay the required wage, which is the greater of the actual wage paid to others with similar experience and qualifications for the specific employment in question and the prevailing wage for the occupational classification in the area of intended employment, 20 CFR 655.731(a). The obligation starts when the worker enters into employment, understood broadly as the moment of first making oneself available for work or otherwise coming under the employer’s control, 20 CFR 655.731(c)(6)(i). It starts in any event no later than 30 days after admission on the petition, or 60 days after the date of eligibility to work where the worker was already in the United States when the petition was approved, 20 CFR 655.731(c)(6)(ii).

Idle time is usually paid time. Where the worker is not performing work because of a decision by the employer, because of a missing permit or license, or for any reason other than the narrow exceptions below, the full required wage remains payable, 20 CFR 655.731(c)(7)(i). A salaried worker is owed the full pro rata amount and an hourly worker is owed a full-time week. Where the labor condition application is designated part time, the measure is the number of hours stated on the petition. This is the rule against what is commonly called benching, and it applies whether the idleness lasts a week or a year.

The two exceptions. Wages need not be paid for a period of nonproductive status caused by conditions unrelated to the employment that take the worker away from those duties at the worker’s own request and convenience, or that render the worker unable to work, provided the period is not covered by the employer’s benefit plan or by another statute such as the Family and Medical Leave Act or the Americans with Disabilities Act, 20 CFR 655.731(c)(7)(ii). The same provision supplies the second exception: payment need not be made once there has been a bona fide termination of the employment relationship.

What makes a termination bona fide. The regulation does not leave the phrase to the imagination. It states in terms that the immigration regulations require the employer to notify the immigration agency that the employment relationship has been terminated so that the petition is cancelled, citing 8 CFR 214.2(h)(11), and to provide payment for transportation home in certain circumstances, citing 8 CFR 214.2(h)(4)(iii)(E). Three things therefore have to happen: the employment relationship must genuinely end and the worker must be told, the agency must be notified so the petition can be revoked, and return transportation must be offered where it is owed. A termination that satisfies only the first is not effective to stop the wage clock.

Where the rule came from. The Administrative Review Board of the Department of Labor reached this conclusion in Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087 (Sept. 29, 2006), rejecting the argument that a termination is complete once the worker has been told. Notice to the worker was held to be necessary but not sufficient. The full decision is attached to this page.

How the agency is notified. The petitioner must immediately notify the immigration agency of any change in the terms and conditions of employment that may affect eligibility, and where it no longer employs the worker it must send a letter explaining the change to the director who approved the petition, 8 CFR 214.2(h)(11)(i)(A). Approval of a petition is immediately and automatically revoked where the petitioner goes out of business or files a written withdrawal, 8 CFR 214.2(h)(11)(ii). A withdrawal letter is therefore the ordinary instrument, and the file copy of it is the evidence that matters if the wage obligation is later disputed.

Return transportation. An employer that dismisses a worker before the end of the period of authorized admission is liable for the reasonable cost of return transportation abroad, 8 CFR 214.2(h)(4)(iii)(E), which implements section 214(c)(5) of the Immigration and Nationality Act. The regulation is explicit that a worker who resigns before the petition expires has not been dismissed and is owed nothing under this heading, and that transportation abroad means to the last place of foreign residence.

What does not end the obligation. An internal decision to terminate, removal from the payroll, a final paycheck, an oral instruction to stop coming in, or a period of unpaid leave imposed for want of assigned work does not by itself stop the required wage from accruing. Nor does the expiration of a client contract or the loss of a project. Until the employment relationship has genuinely ended and the agency has been told, the wage continues to run, and the accumulated shortfall is recoverable as back wages.

What termination means for the worker. A person who held H-1B status is not treated as having failed to maintain that status merely because the employment on which it rested has ceased, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, and once during each authorized validity period, 8 CFR 214.1(l)(2). The agency may shorten or eliminate that period as a matter of discretion, and the period is not itself work authorization: no employment is permitted during it unless separately authorized under 8 CFR 274a.12.

Moving to a new employer. A worker previously granted H-1B status may begin new employment as soon as a prospective employer files a non-frivolous petition, provided the worker was lawfully admitted, the petition is filed before the authorized period of stay expires, and there has been no unauthorized employment before the filing, 8 U.S.C. 1184(n). Authorization continues until that petition is adjudicated and ceases if it is denied. The H-1B overview sets out the wider picture, including cap treatment on a change of employer.

Enforcement. An aggrieved party may complain to the Wage and Hour Division of the Department of Labor, and no particular form of complaint is required, 20 CFR 655.806(a). The complaint must be filed not later than 12 months after the latest date on which the alleged violation was committed, 20 CFR 655.806(a)(5). Where a violation is found the ordinary remedy is payment of the wages that should have been paid, and the Administrator may impose further consequences in serious cases.

The practical point. The paperwork is the substance. An employer that means to end its wage liability must end the relationship in fact, notify the agency in writing, keep proof of having done so, and settle return transportation where the dismissal was its own doing. A worker told that the job has ended should not assume the obligation has ended with it, because the required wage continues to accrue until the agency has been notified, and a claim for the difference is subject to a filing deadline.

Related pages. H-1B Visa Temporary Professionals · Main requirements for an H-1B visa · H-1B cap exemptions and alternatives to the lottery · Contact Antao & Chuang