On June 30, 2011, Department of Labor (DOL) Administrative Law Judge (ALJ) William Dorsey, in the matter of Limanseto v. Ganze and Company, OALJ Case No. 2011-LCA-00005, held that employer Ganze was obligated to pay $156,424.84 in back wages and $1,500 in legal fees to an H-1B nonimmigrant employee whom the company had terminated three years earlier. The court found that employer Ganze had failed to notify U.S. Citizenship and Immigration Services (USCIS) of its termination of the H-1B nonimmigrant employee and had failed to fulfill its obligation to pay for the transportation costs of the H-1B nonimmigrant's return to his home country.
Judge Dorsey wrote, “informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate.” Dorsey concluded that until an employer notifies immigration authorities as to the employee's termination, “the employer remains on the hook for the H-1B worker's wages and benefits.”
Limanseto v. Ganze and Company is representative of at least one DOL ALJ judge's enforcement of the DOL's definition of bona fide termination of an H-1B nonimmigrant employee. Bona fide termination engenders three obligations on behalf of the employer: (1) notice to the employee, (2) notice to USCIS, and (3) payment of transportation costs for the worker to return home. In this case, the judge ruled that failure to fulfill these obligations implied that no bona fide termination of the H-1B employment had occurred, and ordered the employer to pay back wages to the H-1B nonimmigrant employee for from the start date of his H-1B status until the date the company notified USCIS of his termination, nearly two years later. One interesting fact about this case is that the employee never actually started working in H-1B status for the employer; he had only worked for the employer while he was an F-1 student. Moral of the story, if you employ H-1B employees, understand that their employment carries with it certain obligations upon termination.