H-1B SERIES PART THREE: WHEN DOES THE H-1BEMPLOYER’S WAGE OBLIGATION END ?
An H-1B employer’swage obligation when it effects a bona-fide termination. The employer must take three steps to effecta bona-fide termination. Once all threesteps are taken, the employer is said to have made the bona-fide termination:(1) The H-1B employer expressly terminated the employment relationship with theH-1B worker; (2) It notified USCIS of the termination so that the petitioncould be cancelled; and (3) It offers to pay or reimburse the worker for thereasonable cost of return transportation to his or her home country. This three step test is taken from AmtelGroup of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006,slip op. at 11 (ARB Sept. 29, 2006).
The Dedios court pointed out that there aresome very limited exceptions to thethree step test outlined in Amtel Group. The exceptions are found in cases such as: Batyrbekovv. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-025 (ARB July 16, 2014):see also Puri v. University of Alabama Birmingham Huntsville, ARB No. 13-022,ALJ Nos. 2012-LCA-010, 2008-LCA-038, 2008-LCA-043 (ARB Sept. 17, 2014).
The most obviousway for an H-1B employer to meet the first step is to send a letter or email tothe H-1B employee notifying him of the termination of employment. Since the H-1B employer in Dedios waited many months before sendingthe employee a termination letter, the Court found that the wage obligationcontinued until October 27, 2010, in spite of the fact that the employernotified USCIS on June 1, 2010 and offered a flight back to the employee’snative Philippines on May 21, 2010.