When an H-1B employee is terminated from employment, employers often wonder what steps need to be taken. Aside from the obligations in the H-1B regulation, employers may have additional responsibility in regard to the Labor Condition Application (LCA).
Golf International (“Golf”) is a family-owned golf course and restaurant in Fountain Hills, Arizona. It is a small business and employs an average of 70 full and part-time employees. Golf was served with a Notice of Inspection (“NOI”) by Immigration and Customs Enforcement (“ICE”) on August 14, 2012. Golf submitted 157 I-9s for active and terminated employees, as well as the current payroll list and other relevant documents. The following month, ICE issued Golf a Notice of Suspect Documents, a Notice of Discrepancy, and a Notice of Technical and Procedural Failures. Additionally, in April of 2013, ICE served Golf with a Notice of Intent to Fine, seeking a penalty amount of $136,697 for failure to properly complete Sections 1, 2, or 3 of 129 of Golf’s I-9s. After an amended complaint by ICE, this amount was reduced to $113,742.05. One important issue tackled by the court in this case, that may be particularly of interest to employers, was that one of Golf’s I-9’s had a United States Air Force identification card recorded as a List C document in Section 2.
A recent decision, Kutty v. United States Department of Labor, from the Sixth Circuit of the United States Court of Appeals, reinforces a basic principle of immigration law with respect to H-1B visas for professional workers, which is that it is the U.S. employer (and not the foreign employee) who is responsible for the H-1B process, compliance with H-1B regulations, and fees related to the process.
Like so many other employers, an owner of medical clinics who hired workers in H-1B status, Dr. Kutty did not understand employer obligations under the H-1B process. As a consequence, the Department of Labor (“DOL”) found that the medical clinics were in violation of the H-1B regulations. The DOL assessed liability of over $1 million in back wages and over $100,000 in civil penalties.