A recent litigation regarding an H-1B visa audit, also known as a Labor Condition Application (LCA) Audit, raised a question that case law has not yet adequately addressed, even though the case isn't unique. The case law in this area seems to muddle the facts without clearly addressing an employer's obligation to pay the H-1B visa employee when he or she disappears and is never heard from. But prior to delving into the facts of our case, a review of the employer's obligations is in order.
When does the Employer's Obligation to Pay an H-1B Visa Employee Terminate?
The LCA obligates employers to pay H-1B employees an amount at least equal to the "prevailing wage" for their positions. (The Department of Labor (DOL) determines this wage.) There are two situations in which this obligation is known to be exempted. The first applies when an employer effectuates a bona fide termination of the employee. The second is when the employee experiences a period of nonproductive status due to conditions unrelated to the employment which take the employee from his or her duties (e.g. touring the U.S. or caring for an ill relative etc.) or render the nonimmigrant unable to work (e.g. maternity leave or an automobile accident etc.). The regulations, however, do not clearly address a situation in which the foreign national disappears.
The Facts of Our Case
In our case, an H-1B visa employee filed a complaint against our client, her employer, with the DOL. She alleged that the employer failed to pay her in accordance with the LCA. After a lengthy (and faulty) investigation, the DOL administrator alleged that none of the payment exceptions applied to the employer. In making this claim, the Administrator relied on the holding in Gupta v. Compunnel Software Group, Inc. that the burden of proof (to show that the payment obligation exception applies) rests on the employer. In this view, the employer must show that it had work that the employee was unwilling or unable to complete.
- The employee had an F-1 Optional Practical Training (OPT) work authorization, and its validity extended eight months into the start of her H-1B status.
- While her OPT was still valid, she was placed as a consultant at one of the employer's vendor's work sites, but she lost this opportunity, arguably due to her own actions. This opportunity was going to extend into the approval period of her H-1B.
- After her H-1B became valid, she absconded and was patently unavailable for employment because she was unresponsive to the employer's attempts to market her for a new employment assignment.
- She moved to stay with her lover in Chicago (which is over 600 miles from her employer's worksite). They later relocated, married, and divorced after four years.
- Finally, several years after her disappearance, she contacted the employer requesting some documentation. At this point the employer proceeded to effectuating a bona fide termination.
Because no case law provides relevant guidance, this case presents two pertinent legal issues in the H-1B program:
1. Whether the DOL has Jurisdiction over H-1B non-immigrant Employees with Concurrent Immigration Statuses
Generally, immigration statuses fall under the authority of the Department of Homeland Security (DHS). However, the H-1B program carves a separate function for the DOL, pertaining to approving the LCA for H-1B workers. An even more specific framing of the issue demands examining whether the DOL has jurisdiction over non-LCA related cases. The short answer is "no."
OPT is an employment authorization that is approved by the USCIS, an agency under the DHS, for a period of 12 months (or 18 for STEM students). USCIS has the authority to make all procedural and investigative decisions pertaining to OPT authorizations. Because the DOL does not have any authority here like it does in H-1B cases through LCA approvals, it does not have concurrent jurisdiction.
Thus, in our case, the DOL lacked the jurisdiction to assert any back wage liability on the employer because the employee's immigration status when she fled (OPT) fell only under DHS authority.
2. Whether the Obligation to Pay the Prevailing Wage still Rests on an Employer if an H-1B Employee Refuses to Avail Themselves to Employment by Patently Failing to Respond to the Employer
The DOL Administrator relied on the holding in Gupta v. Compunnel to set forth the argument that the employer was obligated to pay the employee. Under this test, the employer must first show that the employee had a job assignment--and then show that the employee did not avail themselves to that assignment. The case at bar presents a separate set of facts.
In our case, the employer placed its employees to work at its clients' worksite on a contractual consulting basis. An employee must interview with the employer's clients before any job placement can occur. This is a common practice. The H-1B employee instead disappeared and was unresponsive to recruitment calls.
The Gupta reasoning and holding should not apply to this case because it is impossible to show that the employee had a job assignment because it was impractical for the employer to compel the employee to pick up recruitment calls, given that she had basically disappeared. Also, to bend the facts of this case to fit around the test set forth in Gupta would be placing an undue burden on employers by forcing them to be responsible for employees' actions (or inaction).
Our View of the Matter
In the absence of applicable precedents, the letter of the law trumps. The text of the exemption statute reads:
If an H-1B nonimmigigrant experiences a period of nonproductive status do to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative)... then the employer shall not be obligated to pay the required wage during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act.
In this case, the H-1B employee voluntarily placed herself in non-productive status by leaving her site of employment to be with her lover in another state, relocated (easily characterized as touring), and her actions (following her lover) and inactions (not picking up recruitment calls) were undoubtedly not related to her employment. Thus, we believe a payment exception should apply. A court's ruling on this case would be the first time the general issue is properly addressed.