U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) Reviews Labor Condition Application (LCA) Wage Eligibility When Bona Fide Termination is Not Effectuated

A DOL ALJ discussed when an employer’s LCA obligation to pay its H-1B worker ends when the employer terminates the worker, the employer fails to effectuate the required “bona fide termination”, and the worker finds new employment. The ALJ concluded in Administrator, Wage and Hour Division v. Bitsofcode Software Systems Inc., that the employer’s wage liability continues until the employer “expressly” notifies the H-1B worker of the termination and until the new employer’s H-1B petition is approved (not just filed). Additionally, the ALJ concluded that an employer is liable for wages even if the H-1B worker is outside the US unless the employer can provide evidence that the worker’s international trip was voluntary or for the worker’s convenience.