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Chinese Immig. Daily
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By Bruce Buchanan, Sebelist Buchanan Law
The U.S. Department of Labor’s Administrative Review Board (ARB) found a consulting company was not obligated to offer or pay a fired H-1B employee’s airfare to India, her home country, because she took no initiative to leave the United States. See Vinayagam v. Cronous Solutions (ARB Case No. 15-045 Feb. 14, 2017).
Cronous, a consulting company, took several months to place Vinayagam. Eventually, it placed her with another company as a contract worker, where she worked for a few months before Cronous’ contract expired. Several months later, Cronous shut down its business and notified Vinayagam of her termination and her need to immediately leave the United States. Vinayagam stated she needed to be paid all the salary owed for her time she was “benched” (available for employment but not employed) and requested airfare to India. Cronous’ representative said he would check on that matter.
Thereafter, Cronous sent a letter to the USCIS asking for revocation of its approval of the I-129 petition. Two months later, the USCIS did so. Cronous continued to pay Vinayagam until the revocation was approved.
Vinayagam continued to reside in the United States for another 1 ½ years seeking other employment and unsuccessfully petitioning for a change of status to B-2 - visitor. She conceded she made no effort to leave the United States.
Vinayagam filed a complaint with the Department of Labor (DOL) on underpayment of wages and a lawsuit in federal court. The parties resolved the lawsuit with Vinayagam receiving $45,000 in back pay for the period of February 2008 to February 2009. Vinayagam asserted at the DOL that she was entitled to back pay continuing until September 28, 2010 because Cronous did not offer or provide payment of return transportation costs upon her discharge.
As most readers know, normally an employer who discharges an H-1B employee must offer to pay the employee’s airfare to his/her home country. Other conditions which employers must meet to affect a bona fide termination of an H-1B employee are express termination of employment relationship with the H-1B employee and notification of the USCIS of the termination in order that the I-129 petition can be revoked.
The ARB determined Cronous had ended its obligation to Vinayagam by paying her wages through February 2009 and notifying her of her termination. It did not need to pay her costs home or offer to do so because Vinayagam voluntarily chose to remain in the United States without a valid visa, sought employment with other employers, and unsuccessfully sought to change to a B-2 visa.
In this case, the employer was successful in not offering return transportation costs based on these particular facts. Your company may not be so lucky if it fails to offer the return transportation costs. Therefore, employers should always offer these return transportation costs when discharging an H-1B employee.