and Nationality Act permits certain nonimmigrants to work in specialty
occupations temporarily on H-1B visas. To support an H-1B visa application, a
U.S. employer must file a Labor Condition Application. The regulations at 20
C.F.R. § 655.731 contain detailed requirements concerning the wages to be paid
to H-1B nonimmigrants, and 20 C.F.R. § 655.731(c) particularly focuses on
circumstances where an employer is required to pay H-1B employees even where
they are in a nonproductive status. If an H-1B employee is in nonproductive
status due to a decision by the employer, the employer is required to pay the
employee’s salary. 20 C.F.R. § 655.73l(c)(7)(i).
there has been a bona fide
termination of the employment relationship, the H-1B employee is no longer
entitled to any further salary. 20 C.F.R. § 655.73l(c)(7)(ii).
entered into an employment agreement with Premier IT Solutions to work under
the H-1B visa program from October 1, 2015 through September 3, 2018. Beginning
sometime in November 2015, Mr. Chettypally was in a non-productive status, due
to the failure of Premier to provide him work assignments.
On March 21, 2016,
Mr. Chettypally filed a complaint with the U.S. Department of Labor Wage and
Hour Division, alleging that Premier had committed a number of violations of
the Labor Condition Application regulations, including a failure to pay him the
agreed upon salary, Approximately one month later, when checking his status on
the USCIS website, Mr. Chettypally discovered that Premier had submitted a
notice to terminate the H-1B visa and that the termination had been approved.
Mr. Chettypally was never directly notified by Premier that his visa had been
terminated, nor was he given any payment for transportation home to India. He
eventually borrowed funds and returned home.
On February 7,
2017, WHD issued a decision finding that Premier had committed three violations
of the H-1B regulations, including failure to pay wages in violation of 20
C.F.R. § 655.731. The Administrator found that there was a failure to pay
Mr. Chettypally for both productive and non-productive work, and for travel
expenses “associated with the petition.”
On February 21,
2017, Mr. Chettypally requested a hearing on the WHD determination. In
particular, Mr. Chettypally contended that Premier did not comply with the bona fide termination process in that it
did not notify him of his employment termination, nor did it provide him with a
flight ticket home.
admitted that he eventually received, as part of the back wages ordered by the
Administrator, after-the-fact payment for his return trip to India.
It was undisputed
that Premier never directly or expressly informed Mr. Chettypally that he was
being terminated. Rather, Mr. Chettypally found out about the termination when
he checked his status on the USCIS website sometime in April, 2016.
Actual notice from
USCIS that his employment with Premier was terminated satisfies the
notification requirement with respect to Mr. Chettypally. Since the intent of
this requirement is obviously to give notice to the H-1B employee and since Mr.
Chettypally received actual notice—albeit not directly from Premier, the
hearing officer found that the purpose of this requirement had been
With respect to
the second requirement of whether a bona fide termination had been effected, it
was clear that Premier did notify USCIS that the employment relationship with
Mr. Chettypally was terminated. With respect to the third requirement, the
record established that Mr. Chettypally was not given payment for his return
trip home at the time he was forced to leave the United States, though he was
later reimbursed for the cost of his trip as a result of the decision by the
The failure of
Premier to comply with all the requirements for bona fide termination did not,
in itself, constitute a basis for directing the payment of additional wages
beyond that ordered by the Administrator. Although the payment for the return
trip to India was after-the-fact, Mr. Chettypally was nevertheless fully
compensated for his return trip. According to the hearing officer, if an H-1B
employee is informed that his employment is terminated, and the employer has
filed the requisite documentation with USCIS, and the individual returns home
on his own, it is difficult to see how the regulations justify payment of
additional salary for the period the individual is no longer in this country.
Since Mr. Chettypally had already left the country as of May 13, 2016, he
was in no position to continue working for Premier. In view of the WHD
Administrator’s decision to require Premier to provide full back pay from
November 1, 2015 through May 13, 2016, and to provide, although after-the fact,
the cost of a return trip home, Premier had no further financial obligation to
Mr. Chettypally. Chettypally v. Premier IT
Solutions, Inc., 2017-LCA-00006.
Rites LLC is an IT
consulting company located in Virginia. On March 30, 2012, the Department of
Labor’s Wage and Hour Division issued a letter notifying Rites that it was the
subject of an investigation to determine compliance with the H-1B Labor
Condition Application provisions of the Immigration and Nationality Act. The investigation
involved 27 employees, including Usha Kiran Danda.
On September 18,
2015, Rites and the Administrator of the Wage and Hour Division of the U. S.
Department of Labor entered into a Back Wage Compliance and Payment Agreement.
The Agreement stated that “[a]s a result of th[e] investigation monetary
violations were found resulting in 26 employee(s) due back wages in the amount
of $61,595.92.” Mr. Danda was not listed among the 26 employees covered by the
On March 23, 2017,
the Administrator issued a second determination letter to Rites. The March 23,
2017 determination letter stated that “it has been determined that your firm
committed the following violations”:
- failed to pay wages as required in
violation of 20 C.F.R. § 655.731.... failed to provide notice of the filing of
LCA(s) in violation of 20 C.F.R. § 655.734.... failed to maintain
documentation, as required by 20 C.F.R. § 655.731(b), 20 C.F.R.
§ 655.738(e), 20 C.F.R. § 655.739(i) and/or 20 C.F.R. § 655.760(c).... and
failed to comply with the provisions of subpart H or I in violation of 20
C.F.R. § 655.735(c).
As to the remedy
for the violations, the letter stated: “Your firm owes back wages in the amount
of $134,029.86 to one (1) H-1B nonimmigrant, Usha Kiran Reddy Dandy.”
disputed the start date of the back wage assessment for Mr. Danda. The
Administrator contended the start date should be October 1, 2008, and Rites argued
the start date should be January 8, 2009, the first day of the validity period
on Rites’ H-1B petition.
The sole issue was
the start date for Rites’ obligation to pay back wages to Mr. Danda. There was
no dispute that Mr. Danda became employed by Rites, never obtained an
assignment but was not validly terminated, and was therefore is entitled to back
wages for his employment. The parties agreed on the rate of pay for the back
wages and that wages were due through September 22, 2011. They disagreed only
as to the start date for the payment of back wages.
An employer is
required to pay full wages to an H-1B nonimmigrant, even if the worker is in
nonproductive status for lack of assigned work, “after the nonimmigrant has
entered into employment with the employer.” 8 U.S.C. § 11 82(n)(2)(C)(vii)(l);
20 C.F.R. § 655.73l(c)(7)(i). An H-1B worker “enters into employment” with an
employer “when he/she first makes himself available for work or otherwise comes
under the control of the employer, such as by waiting for an assignment,
reporting for orientation or training, going to an interview or meeting with a
customer, or studying for a licensing examination, and includes all activities
thereafter.” 20 C.F.R. § 655.73l(c)(6)(i).
argued that Mr. Danda entered into employment with Rites by October 1, 2008,
because he moved to Richmond, Virginia, in September 2008 to work for Rites;
began an eight-week training class for Rites sometime in September 2008; and
began receiving job postings.
countered that the training class was open to the public; that the purported
job posting emails did not clearly relate to available positions and did not
establish that any job opportunities had a start date prior to January 8, 2009;
that the Administrator failed to produce any direct documentation of
employment, such as W-2s, I-9s, timesheets, or similar documents; and that its
co-owner, Mr. Vakkalanka, unambiguously stated that Mr. Danda was not an
employee of the company prior to approval of the petition in January 2009.
Rites also argued that in any event, the obligation to pay wages is not
triggered “merely because the employee chooses to make himself available to
work,” but rather depends on when the employee becomes eligible to work through
approval of the H-1B petition.
officer found that Mr. Danda made himself available to work for Rites when he
moved to Richmond, Virginia, and began participating in Rites’ training class.
The H-1B “portability”
provision allows an H-1B worker to change employers, and states that a
“nonimmigrant alien described in paragraph (2) who was previously issued a visa
or otherwise provided nonimmigrant status ... is authorized to accept new
employment upon the filing by the prospective employer of a new petition on
behalf of such nonimmigrant .... Employment authorization shall continue for
such alien until the new petition is adjudicated. If the new petition is
denied, such authorization shall cease.” 8 U.S.C. § 1184(n).
officer concluded that the portability provision applied. USCIS had
investigated Mr. Danda and granted him H-1B status with a prior employer, Vayu
Inc., and investigated and approved Rites’ petition, based on a “[c]hange of
employer,” to “[a]mend the stay of the person(s) since they now hold this
status.” The approval by USCIS was
evidence that Mr. Danda had been lawfully admitted into the U.S.; that the
petition was not frivolous; and that Mr. Danda had not been employed without
authorization prior to the filing of Rites’ petition. Therefore, the
portability provision applied to him.
Thus Mr. Danda was
entitled to back wages from the first date that he “entered into employment”
with Rites following the date of filing of Rites’ I-129 petition. Rites filed
its I-129 petition on September 18, 2008, and Mr. Danda entered into employment
with Rites as of October 1, 2008. Therefore, Mr. Danda was entitled to back
wages as of October 1, 2008. Administrator,
Wage and Hour Division v. Rites LLC, 2017-LCA-00011
· Michael R. Lied· Howard & Howard Attorneys PLLC· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602· (309) 999-6311· MLied@howardandhoward.com