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No 'Bona Fide Termination' of H-1B Worker

January 21, 2009
Related Topics: Featured Article, Legal
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Zhaolin Mao worked for Nasser Engineering & Computing Services as a software engineer. In May 2001, the U.S. Department of Labor approved the company’s labor condition application to employ Mao pursuant to an H-1B nonimmigrant visa.

    In August 2002, the Houston company terminated Mao’s employment when it gave him the option to take a reduction in force or to take a leave of absence for several months. Mao chose to take three months of leave. Under the terms of the labor condition application, and consistent with applicable regulations, the employer is required to make payments for the duration of the approved work period even if the worker has periods when work is not made available by the employer.

    In January 2005, Mao filed a complaint with the Department of Labor’s Wage and Hour Division, alleging that the company failed to comply with the requirement that an H-1B worker be paid the greater of the prevailing wage or the employer’s actual wage for the work performed by the employee. The division found for the employer, and Mao appealed.

    The DOL’s Administrative Review Board found that the employer does not have to pay an H-1B worker if there has been a bona fide termination of the employment relationship. But the employer is required by regulations to notify the U.S. Citizenship and Immigration Services, a component of Department of Homeland Security, of any termination of an H-1B worker’s employment so that the visa can be revoked. The court found Nasser liable to pay Mao his full salary. Mao v. Nasser Eng’g & Computing Servs., DOL ARB, No. 06-121, (11/26/08).

    Impact: When sponsoring an H-1B visa, employers should contact U.S. Citizenship and Immigration Services and inform the agency of any changes in the employment relationship, or the employer will be liable for the employee’s wages for the duration of the visa.

Workforce Management, January 19, 2008, p. 8 -- Subscribe Now!

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