In this case, the ALJ concluded that Jain effected a bona fide termination of its employment relationship with Gupta by notifying INS that it no longer employed Gupta. On that basis the ALJ concluded that any duty Jain had to Gupta pursuant to the LCA had expired more than 12 months before Gupta's September 2003 complaint.
But notice to INS is not enough. Jain has the burden on the question of whether it gave notice of termination to Gupta and whether it had a duty to provide Gupta with payment for transportation home and whether it satisfied that requirement. Most importantly, it is clear on the face of the pleadings that the parties have joined issue on a material question of fact, viz., whether, and if so, when Jain and Gupta terminated their employment relationship.
CONCLUSION
There being no limitations barrier to Gupta's complaint, we REMAND this case for further proceedings consistent with this decision.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 The INA permits employers in the United States to hire nonimmigrant alien workers in specialty occupations. 8 U.S.C.A. § 1101(a)(15)(H)(i)(b). These workers commonly are referred to as H-1B nonimmigrants. Specialty occupations require specialized knowledge and a degree in the specific specialty. 8 U.S.C.A. § 1184(i)(1). To employ H-1B nonimmigrants, the employer must fill out a Labor Condition Application (LCA). 8 U.S.C.A. § 1182(n). The LCA stipulates the wage levels that the employer guarantees for the H-1B nonimmigrants. 8 U.S.C.A. § 1182(n)(1); 20 C.F.R. §§ 655.731, 655.732. After securing DOL certification for the LCA, the employer petitions for and the nonimmigrants receive H-1B visas from the State Department upon Immigration and Naturalization Service (INS) approval. 20 C.F.R. § 655.705(a), (b) (The INS is now the "U.S. Citizenship and Immigration Services" or "USCIS," which is located within the Department of Homeland Security (DHS). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2194-96 (Nov. 25, 2002)).
2 Gupta argues in the alternative that the limitations period should be tolled because (1) the attorney who purported to represent both Gupta and Jain did not notify Gupta that the INS had revoked his H-1B visa at Jain's behest and (2) Jain misled Gupta about the relevant limitations period by entering into a contract with him which, under relevant state law, would have allowed Gupta ten years to file a complaint for nonpayment during the LCA period. Because we find that Gupta's H-1B complaint was timely filed, we do not address Gupta's tolling argument.
3 The employer has the burden of proof on each element of a bona fide termination – an actual meeting of the minds between the employer and the nonimmigrant that the employment relationship is terminated; employer notice to the INS, and when appropriate, payment by the employer for the nonimmigrant's return home. See e.g., Administrator v. Ken Techs., Inc., ARB No. 03-140, ALJ No. 2003-LCA-015, slip op. at 4-5 (ARB Sept. 30, 2004) (the employer failed to establish a bona fide termination where the employer had issued a "termination letter" to the nonimmigrant but retained possession of the nonimmigrant's engineering certificate and omitted to notify INS of the alleged termination); Rajan v. Int'l Bus. Solutions, Ltd., ARB No. 03-104, ALJ No. 03-LCA-12, slip op. at 4 (ARB Aug. 31, 2004)(the employer failed to carry its burden of proof on its claim that it had terminated the employment relationship where the employer issued a notice of termination to the INS but then continued to market the nonimmigrant's services and to offer her assignments); Rung, slip op. at 10-12 (the employer did not effect a bona fide termination where it provided the nonimmigrant with notice that her employment was being terminated but offered no evidence that it notified the INS or paid the nonimmigrant for her return home).