[B][COLOR=#0000cd][B][SIZE=3][FONT=comic sans ms]DOL Clarifies When an Employer’s LCA Wage Obligations Cease
To Terminated Workers Who Obtain Subsequent Approved H-1B Employment[/FONT][/SIZE][/B][/COLOR][/B]

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On December 22, 2014, the U.S. Department of Labor’s (DOL) Administrative Review Board (ARB) issued an important Final Order and Decision clarifying precisely when an H-1B employer’s Labor Condition Application (LCA) back pay obligations to a laid-off employee cease under the Immigration and Nationality Act (INA).

Notably, the ARB held that in cases involving multiple H-1B petitioners where the termination was clear to the former employee, the approved “[B]new employment[/B]” or “[B]change of employer[/B]” petition filed by a subsequent employer ended the wage obligations of the initial H-1B employer at the time the new petition was approved by U.S. Citizenship and Immigration Services (USCIS).

To ensure that employment of foreign workers does not adversely affect the U.S. workforce, H-1B employers are required to obtain a certified LCA from the DOL.

Generally speaking, for the duration of the approved H-1B employment, unless an employer takes steps to file a new LCA and materially amend the H-1B petition, the wage obligation is intended to guarantee payment for the entire period of employment authorized by the LCA, up to three years.

Specifically, in 2006 the ARB held in [I]Amtel Group of Fla., Inc. v. Yongmahapakorn[/I] that if an employer clearly tells an employee that he or she is terminated but fails to meet both of the other regulatory requirements of paying for a return trip and notifying USCIS, then it has not effectuated a bona fide termination of employment and the former employee could be awarded back pay for the entire period of the H-1B approved petition.

Perhaps most importantly for many companies that regularly file large numbers of H-1B petitions on behalf of portable employees, the ARB considered the “[B]complexities that can arise in cases that involve multiple H-1B employers[/B],” including whether subsequent employers would have sought approval of a “[B]new employment[/B]” and/or a “[B]change of employer[/B]” H-1B petition on behalf of a particular beneficiary.

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