Mark A Ivener, A Law Corporation

Company Held Liable for Back Wages of H-1B Employee Who Never Worked

Ganze & Company, an accounting firm in Napa Valley, California, filed a labor condition application (LCA) to hire Kevin Limanseto as an H-1B employee but subsequently decided not to employ him. However, Ganze never informed the government of that change, and Mr. Limanseto complained to the Department of Labor that he had never been paid. Administrative Law Judge William Dorsey noted:

Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker’s wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability.

In this case, Ganze did not report that Mr. Limanseto was not employed until more than two years later. In addition, Ganze did not pay Mr. Limanseto’s trip home, which is another element of a bona fide termination. The failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker’s admission liable for the entire period of authorized employment, ALJ Dorsey noted. Therefore, he found that Ganze was liable for wages for the entire period of the LCA, plus interest, among other things. The total amount for which Ganze is liable exceeds $156,000.

The decision, Matter of Limanseto, 2011-LCA-00005, PDF.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.