The "Bona Fide Termination" Requirement for H-1B Employers
The “Bona Fide Termination” Requirement for H-1B Employers
Employers who submit petitions for H-1B workers usually intend to employ the H-1B worker for the entire duration of the visa approval. However, for various reasons, employers may find it necessary to terminate the H-1B employee. In such situations, the U.S. Department of Labor (DOL) sets strict rules that all employers of H-1B employees must comply with, which is called the “bona fide termination” requirement. If an employer does not properly comply with the “bona fide termination” requirement, the employer may be held liable for Labor Condition Application (LCA) wages to the H-1B employee for the entire duration of the visa approval period. In some cases, the employer may also be held liable to pay interest on those LCA wages.
Standard “Bona Fide Termination” Rule
The Administrative Review Board (ARB) defined a three step process to establish a “bona fide termination” in the 2006 case of Amtel v. Yongmahapakorn. According to the Amtel case, an H-1B employee’s termination is deemed to be “bona fide” if the following three steps are all met:
1. The employer must notify the H-1B employee that he or she is being or has been terminated;
2. The employer must notify the U.S. Citizenship and Immigration Services (USCIS) that the H-1B employment has been terminated; and
3. The employer must offer to pay the reasonable costs for return transportation for the H-1B employee’s travel back to his or her home country.
To avoid any liability, the employer must ensure that all three steps are clearly documented because if an H-1B employee subsequently files a complaint with the DOL, the burden of proving compliance with the rules falls on the employer. Thus, the employer should issue all three notifications in writing. It is best to submit the USCIS notification with a return receipt, and the employer should obtain a written acceptance or rejection from the H-1B employee of the employer’s offer to pay transportation costs.
New Exception to the Rule
In 2014, the ARB defined an exception to the Amtel “bona fide termination” rule in cases where another employer files an H-1B petition for the H-1B employee. In the case of Batyrbekov v. Barclays, an H-1B employee was terminated from Barclays. The employer, Barclays, had properly notified Batyrbekov, an H-1B employee, that he was terminated and offered to pay for his return transportation back to this home country. But Barclays failed to notify the USCIS that it had terminated Batyrbekov’s H-1B employment. Subsequently, Batyrbekov found a new employer that filed an H-1B petition with the USCIS, which was approved. However, Batyrbekov filed a complaint when the new employment fell through.
According to the ARB in the Barclays case, when a new employer files an H-1B petition for a terminated employee, the approved petition can serve to fulfill the second step in the standard “bona fide termination” requirement. In other words, in the event that an employer fails to properly notify the USCIS that it has terminated an H-1B employee, a subsequent H-1B petition filed by a new employer can act as the required notification. Specifically, if the USCIS approves a “change of employer” petition, the approval serves as the required notification to the USCIS that the previous employment relationship has ended. Similarly, if the USCIS approves a “new employment” petition, the approval will act as the required notification to the USCIS. Thus, the first employer’s obligation to pay LCA wages ends, as long as the other two steps are also complied with.
Employers should note that the general rule is still as defined by the Amtel case. If an employer must terminate an H-1B employee, the employer should still ensure that it complies by the standard three step process defined above to effectuate a “bona fide termination.” However, if the employer fails to notify the USCIS of the termination, employers can still find relief from the obligation to pay back wages if it can prove that the employee was approved for a subsequent H-1B petition filed by a new employer.