United States: DOL Administrative Review Board Nixes Greedy H-1B Worker's Front Pay Appeal Based On New H-1B Employer Petition Approval

Executive Summary:  The U.S. Department of Labor (DOL) has just released a final decision and order rendered this past July by the Administrative Review Board (ARB), holding that an H-1B worker's front pay claim against a former employer is cut off where it is clear that the worker changed employers and is the beneficiary of an approved H-1B petition filed by the new employer. In the Matter of Batyrbekov v. Barclays Capital (Barclays Group US Inc.), ARB Case No. 13-013, Final Decision and Order (ARB, July 16, 2014).

Background Information:  In September 2008, Lehman Brothers Holdings, Inc. entered into an asset purchase agreement with Barclays Capital, Inc. under which Barclays assumed Lehman's obligations to its H-1B foreign temporary workers under the DOL labor condition application (LCA) regulations.  Barclays issued WARN Act 60-day termination notices to these H-1B workers in October 2008, along with many U.S. workers who were being laid off due to the economic collapse.   

Unfortunately for Barclays, it was unaware of DOL's LCA rule requiring an employer to notify the U.S. Citizenship and Immigration Service (USCIS) that it was withdrawing the respective H-1B petitions and to offer to pay the return transportation costs of terminated H-1B workers. Barclays otherwise paid the terminated workers their base wages for 60 days, plus a $3,000 severance payment.  In a prior ruling, the ARB had found an employer liable for payment of front pay to an H-1B worker through the end of her H-1B/LCA approval period, based on the employer's failure to provide notice of termination to USCIS and to offer payment of the H-1B worker's return transportation costs.  

One of the terminated H-1B workers, Kuanysh Batyrbekov, whose approval period ran through August 2010, filed a complaint with the DOL Wage and Hour Division (WHD), accusing Barclays and its predecessor, Lehman Brothers, of providing incorrect or false information on the LCA, failing to pay the higher of the actual or prevailing wage, failing to provide H-1B workers with fringe benefits equivalent to those paid to U.S. workers, failing to comply with the LCA notice requirements, failing to comply with the recordkeeping and public access file requirements, and failing to pay return transportation costs for himself and his belongings.  Following an investigation, the WHD Administrator issued a determination finding Barclays liable to the complainant for payment in the amount of $9,707.24, which represented the difference between the wages and severance benefit paid to Batyrbekov by Barclays, and the base wages Batrybekov would have earned through March 31, 2009, based on Batrybekov's admission that he had obtained new employment in April 2009.  Barclays voluntarily complied with the Administrator's wage payment order. 

Batrybehov appealed the determination and filed a request for a hearing de novo before a DOL administrative law judge.  At hearing, the WHD investigator testified as to the basis upon which the Administrator's benching pay findings were calculated through March 31, 2009, and the grounds upon which the complainant's remaining allegations were found to be without merit.  Barclays submitted evidence that the complainant obtained a new H-1B employer sponsor in January 2009 based on a petition approved January 21, 2009, cutting off liability for benching pay under the LCA regulations. Alternatively, Barclays argued that its back wage liability ended as of March 4, 2009, based upon an independent trade report that the complainant was employed in Kazakhstan.   Ultimately, the ALJ held that Barclays' liability was cut off as of March 4, 2009, but rejected an earlier cut-off based on the employer petition approved in January 2009 because it was subsequently withdrawn.  As a result, the ALJ held that Barclays had voluntarily overpaid the complainant by $3,764.59 in response to the Administrator's determination – but that Barclays was not entitled to recovery of the overpayment.

Barclays elected not to appeal the ALJ's decision, but Batyrbekov did, and the ARB granted his petition for review.   Although the ARB refused to entertain arguments from Barclays by way of cross appeal, the ARB nevertheless rejected Batyrbekov's assertions that he was entitled to back wage payments through the end of the Lehman Brothers-Barclays approval period under the substantial evidence standard of review of the record before the ALJ.  However, the ARB ruled that the ALJ had committed a mistake of law in interpreting ARB precedent to render an H-1B employer liable for payment of the LCA wage until the H-1B worker is actually re-employed rather than the date by which the H-1B worker secures approval for a change of employment to employment by a new H-1B sponsor.  Unfortunately for Barclays, the ARB affirmed the ALJ's finding that it was not entitled to a refund. 

The Impact of the Court's Decision on H-1B Employers 

The ARB's decision in Matter of Batyrbehov is significant because it recognizes that the filing and approval of a new H-1B petition for a terminated H-1B worker cuts off the prior H-1B employer's continuing liability for payment of LCA wages through the expiration of the petition approval period – even if the prior employer failed to comply with the USCIS notice requirement and the requirement that it offer to pay the reasonable cost of return transportation to the terminated worker – provided the notice of termination to the H-1B worker was clear and unequivocal. 

Unfortunately, the ARB laid down an important technical caveat.  According to the ARB, the liability cut off will apply only if the new employer sponsor checks off either the "change of employment" or "new employment" category on the H-1B petition form.  If the new sponsor checks off "new concurrent employment," the first sponsor's liability will not end until it provides notice to USCIS of the withdrawal of its petition. This technicality poses proof problems for respondent employers because the federal Privacy Act prevents third parties from obtaining immigration petition materials under the Freedom of Information Act.   In the past, WHD has not been responsive to requesting new petition information from USCIS during its investigation.  Should the Administrator enter a significant back wage order, however, the respondent employer is well advised to file a timely request for hearing and utilize the discovery rules to request that H-1B workers produce copies of all subsequent petitions filed on their behalf.  The ARB upheld the ALJ's determination in Matter of Batyrkehov that an H-1B worker's refusal to produce a copy of the new employer's petition is grounds to draw an adverse inference with respect the petition category designated by the new employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.