Employer liable for $156,000 in back wages to H-1B employee who never worked for the company

In Matter of Ganze & Company OALJ Case No. 2011-LCA-0005 (June 30, 2011) the Department of Labor (DOL) Administrative Law Judge (ALJ) held that failure to notify USCIS of termination of an H-1B can cost thousands of dollars.  The company terminated the worker six weeks before he was to start work in October 1, 2008 but never did the three things every H-1B employer must do:  mail notice to the worker; mail notice to UISCIS so that the I-129 Petition can be cancelled; and pay for his flight home.  The company finally got around to complying in August 2010, long after the worker returned at his own expense to Indonesia.  Result:  he was never legally terminated, and Ganze & Company has to pay him $156,000 in wages for work never performed, legal fees and pre-judgment and post-judgment interest. 

Often H-1B employees ask that employers not terminate the H-1B to facilitate their search for new jobs.  HR managers should consider carefully their obligations to the worker and to the USCIS.  As the ALJ wryly observed:  the employer must be careful or it will remain “on the hook for the H-1B worker’s wages and benefits.  For the price of a postage stamp, the Employer often can absolve itself of further liability.”