Xia v. Lina T. Ramey & Associates, Inc. (agency decision, October 7, 2024)

Plain-English summary

Lina T. Ramey & Associates terminated H-1B design engineer Ellen Xia but did not promptly notify immigration authorities or pay her return transportation costs. The administrative judge awarded back wages and transportation costs but barred Xia from testifying remotely based on a perceived conflict with Chinese law. The Board held that the judge abused his discretion by excluding her without applying the required framework for evaluating a foreign blocking statute, particularly when her testimony was central to several claims. It also held that merely telling Xia she was eligible for travel costs, subject to a six-day response deadline, was not payment or a good-faith effort to pay. Because the employer did not effect a bona fide termination, the Board directed an award of back wages from February 24, 2020 through the October 2, 2022 end of Xia's authorized employment, plus interest. It remanded for that judgment and for renewed consideration of her green-card-fraud claim, fringe benefits, and reasonable transportation costs after a remote hearing.

Decision snapshot

• Cited authorities: 20 C.F.R. § 655.731(c)(7)(ii); 29 C.F.R. § 18.81(c)
• Outcome: Bona fide termination finding reversed; back wages extended through October 2, 2022, with remaining compensation claims remanded.
• Key point: An H-1B employer must satisfy the termination requirements, including return transportation when applicable, and a judge may not exclude essential foreign testimony without the required legal analysis.

Full text (DOL official public release)

    U.S. Department of Labor           Administrative Review Board
                                       200 Constitution Ave. NW
                                       Washington, DC 20210-0001

    IN THE MATTER OF:


    ELLEN XIA,                                      ARB CASE NO. 2023-0046

                COMPLAINANT,                        ALJ CASE NO. 2022-LCA-00013
                                                    ALJ TIMOTHY J. MCGRATH
         v.
                                                    DATE: October 7, 2024
    LINA T. RAMEY & ASSOCIATES, INC.,

                RESPONDENT.

Appearances:

For the Complainant:
      Ellen Xia; Pro Se; Dallas, Texas

For the Respondent:
      Andrew J. Broadaway, Esq.; Cornell Smith Mierl Brutocao Burton;
      Austin, Texas

Before THOMPSON and ROLFE, Administrative Appeals Judges


          ORDER REVERSING IN PART AND REMANDING IN PART

THOMPSON, Administrative Appeals Judge:

      This case arises under the Immigration and Nationality Act (INA) and its
implementing regulations, as related to the H-1B visa program.1 On July 28, 2023,
an Administrative Law Judge (ALJ) issued a Decision and Order Modifying the
Administrator’s Determination (D. & O.) ordering Lina T. Ramey & Associates, Inc.
(Respondent) to pay Ellen Xia (Complainant) $78,914.00 in back wages2 and




1       8 U.S.C. § 1101(a)(15)(H)(i)(b); 20 C.F.R. § 655, Subparts H and I (2024).
2       D. & O. at 9.
                                              2


$3,140.15 in transportation costs,3 plus interest.4 Xia appealed the matter to the
Administrative Review Board (ARB or Board). We reverse in part and remand in
part for further proceedings consistent with this opinion.

                                       BACKGROUND

       In October 2019, Respondent hired Xia, a Chinese citizen, to work in the
United States as a Design Engineer pursuant to an H-1B visa.5 Respondent filed a
Labor Condition Application (LCA) with the Department of Labor (DOL).6 The
United States Citizenship and Immigration Services (USCIS) approved Xia’s H-1B
petition for a period of authorized employment from October 3, 2019, through
October 2, 2022.7 According to the LCA, Xia would work out of the Farmers Branch,
Texas office and receive a salary of $70,720.00.8

       On February 24, 2020, Respondent’s Senior Project Manager terminated
Xia’s employment at an in-person meeting for allegedly refusing to complete
assigned work tasks.9 Xia, for her part, claimed that any alleged refusal to work
resulted from being asked to do work that was outside of the LCA and because of
on-the-job racial and sexual harassment.10 A letter memorializing the termination
was left on Xia’s desk.11 The letter read in relevant part:

               This letter confirms our discussion that your employment
               with [Respondent] is terminated as of today. As discussed,
               the reason for your termination is refusal to do work
               assigned to you.

               You will receive your accrued PTO in your final paycheck
               which you will receive as part of the regular pay period on
               March 6, 2020 . . . You are also eligible to receive


3      Id. at 10.
4      Id.
5      Id. at 3.
6      Id.
7      Id.
8      Id.
9     Id. Respondent’s president signed a sworn declaration that Respondent decided to
terminate Complainant’s employment on February 20, 2020. Id. at 5.
10     Id. at 3 n.5.
11     Id. at 3. The termination letter’s metadata verifies that it was created and last
modified on February 20, 2020. Id. at 5.
                                           3


              transportation costs to return abroad. Please notify
              [Respondent] of your desire to do this by March 1, 2020.[12]

Xia did not open the termination letter, did not take it with her when she left the
office, and never returned to work for Respondent.13 She later applied for
unemployment benefits with the Texas Workforce Commission.14

       Xia e-mailed Respondent on October 27, 2020, requesting payment for her
return ticket to China and package delivery fees.15 Respondent did not respond to
Xia’s request.16 Xia left the United States on December 8, 2020.17

      On April 7, 2021, Respondent notified USCIS it terminated Xia’s employment
on February 24, 2020.18 USCIS revoked Xia’s H-1B visa on August 20, 2021.19

                                PROCEDURAL HISTORY

       Prior to leaving the United States, on November 20, 2020, Xia filed a
complaint with the DOL’s Wage and Hour Division’s (WHD) Austin District Office
alleging various H-1B violations.20 Xia filed another complaint comprised of the
same allegations with the Dallas District Office on February 1, 2021.21

      The WHD investigated Xia’s allegations and the Administrator of the WHD
(Administrator) determined Respondent failed to establish a bona fide termination
because it failed to notify USCIS and pay return transportation expenses.22 The

12    Id. at 3.
13    Id.
14    Id. at 5.
15    Id. at 3.
16    Id.
17    Id.
18    Id. at 4.
19    Id.
20    Id.
21    Id.
22      Id. A bona fide termination occurs when the employer: (1) gives notice of the
termination to the worker; (2) gives notice to the Department of Homeland Security
(USCIS); and (3) under certain circumstances, provides the non-immigrant with payment
for transportation home. Manoharan v. HCL America, Inc., ARB No. 2021-0060, ALJ Nos.
2018-LCA-00029, 2021-LCA-00009, slip op. at 10 (ARB Apr. 14, 2022) (citations omitted);
see 20 C.F.R. § 655.731(c)(7)(ii).
                                               4


Administrator found Respondent owed Xia $56,304.00 in back wages, accruing from
February 24, 2020 to December 8, 2020 (the date Xia left the United States), and
$4,531.41 in travel expenses.23 The Administrator did not assess civil money
penalties.24

       Xia timely appealed the Administrator’s Determination and requested a
hearing before the Office of Administrative Law Judges (OALJ).25 The
Administrator and Respondent filed a Joint Motion for Summary Judgment and
Entry of Consent Decree in which Respondent agreed to pay the entire amount
assessed by the Administrator.26 Xia opposed this agreement believing she was
entitled to additional back wages and fringe benefits.27 On November 18, 2022, the
ALJ issued an Order Denying Summary Decision and Setting Hearing Date.
Following this Order, the ALJ rescheduled the hearing several times due to various
filings and motions by the parties.28

       On February 17, 2023, the ALJ named Xia as a Prosecuting Party but
required the Administrator to remain a part of the case to substantiate its
Determination Letter.29 Prior to the hearing, Respondent voiced concerns with
taking Xia’s testimony remotely due to his characterization of a Chinese law,
commonly referred to as a blocking statute, that he asserted prohibits Chinese
citizens, in effect, from ever testifying in foreign proceedings from mainland
China.30 The ALJ agreed with these concerns31 and advised Xia that she would need
to travel to the United States or a special administrative region of China to testify
at the hearing.32




23     D. & O. at 4.
24     Id.
25     Id. at 2.
26     Id.
27     Id.
28     Id.; Hearing Transcript (Tr.) at 6-8.
29     D. & O. at 2.
30    Id.; November 18, 2022 e-mail at 1-2; November 30, 2022 Telephone Conference
Transcript at 4-8, 10-11.
31     See Order on Four Pending Motions and Scheduling Hearing at 2-3 (ALJ Jan. 24,
2023) (citing Ji v. Jling Inc., No. 15-CV-4194 (SIL), 2019 WL 1441130, at *11 (E.D.N.Y.
Mar. 31, 2019) (“[B]y testifying via video link while located in mainland China, Ji violated
Article 277 of the Chinese Civil Law.”) (other citations omitted).
32     Id.
                                            5


       If Xia planned to testify remotely from a special administrative region of
China not subject to the specific probation concerning testimony to get around the
blocking statute, the ALJ also ordered her to provide the following information:
(1) the precise location from which she would be joining remotely; and
(2) a certification from a local attorney or official that all applicable legal
requirements concerning her testimony had been satisfied, including requirements
concerning the administration of an oath to a witness.

       Neither the ALJ nor any of the parties provided a legal foundation for
granting OALJ the authority to order an unrepresented complainant to hire an
attorney or obtain authorization from an unspecified “official” in order to be
permitted to testify, however, nor was a legal source provided authorizing the ALJ
to enforce his interpretation of Chinese law.

       On April 5, 2023, Xia submitted her proposed exhibits and a document titled,
“Certification of Compliance.” It stated in relevant part:

             The precise location from which I will be joining remotely
             at 142 Estrada Governador Albano de Oliveira, Taipa,
             Macau, Macau, via the Microsoft Teams Meeting platform
             . . . I am writing, to ensure compliance with all legal
             requirements of the foreign jurisdiction.[33]

       On April 6, 2023, the ALJ sua sponte issued an Order Requesting Position of
the Administrator stating that Xia’s Certification of Compliance was facially
deficient and directing the Administrator to provide a position statement on the
legality of taking Xia’s testimony from Macau.34 The Administrator responded that
based on information received from a senior attorney at the Department of Justice
and because Xia failed to comply with the ALJ’s certification requirements, Xia
should not be allowed to testify remotely while in Macau.35 The ALJ issued the
order despite the fact his own research indicated that the depositions of Chinese
nationals are routinely permitted in Macau without objection or reprisal and that
parties to litigation often agree to hold depositions in Macau or another special
administrative region of China.

       On April 12, 2023, the ALJ issued an Order Setting In-Person Hearing.
The ALJ held that Xia was unable to participate at the hearing at all because she:
(1) submitted a facially deficient certification; (2) failed to seek assistance with
providing foreign testimony or make travel plans to testify in the United States; and

33    Order Setting In-Person Hearing at 1 (ALJ Apr. 12, 2023).
34    Order Requesting Position of the Administrator at 1-2 (ALJ Apr. 6, 2023).
35    The Administrator’s Response to Court’s April 6, 2023 Order Requesting Position of
the Administrator at 1-2 (Apr. 10, 2023).
                                            6


(3) failed to show good cause justifying her participation remotely.36 The ALJ
scheduled an in-person hearing for May 18, 2023.37

       Prior to the hearing, the Administrator and Respondent submitted a Joint
Prehearing Statement while Xia submitted her own prehearing statement.38 At the
hearing, counsel for the Administrator and Respondent appeared and presented
opening arguments and the ALJ admitted evidence into the record. Xia was present
as “an observer” via telephone.39 She was not permitted to provide her own opening
statement or respond to the arguments, and she was not allowed to testify to
support her claims.

       On July 28, 2023, the ALJ issued the D. & O. The ALJ first recognized the
two exceptions that end a company’s wage paying obligations: when a worker
experiences a period of nonproductive status due to conditions unrelated to their
employment and when there has been a bona fide termination of the employment
relationship.40 He then rejected the position of the Administrator and Respondent
that Respondent’s wage paying liability ended the day Xia left the United States,
finding “it conflates the two exceptions” when “the regulations present them as two
distinct concepts.”41

       He further explained that “if liability ceased when the employee left the
country, the requirement that USCIS be notified immediately would be of negligible
importance” because there would be “no incentive” to notify USCIS if “liability was
cut-off.”42 In support of that position, the ALJ pointed out that Respondent did not
notify USCIS until the Administrator informed it of its obligation over one year
after Xia’s termination and four months after she left the United States. He thus
found the wage paying obligation ended the day Respondent notified USCIS about
the termination, April 7, 2021.

36      Order Setting In-Person Hearing at 1. On April 11, 2023, five days after the
deadline, Complainant filed a new Compliance Certificate. In this Compliance Certificate,
Complainant requested to testify remotely from Saipan, Northern Mariana Islands and
provided a similar statement that she complied with all legal requirements of the foreign
jurisdiction. The ALJ denied this Compliance Certificate because he found it “untimely.”
Order Setting In-Person Hearing at 2 n.3.
37    In a subsequent conference call, the Administrator and Respondent agreed to
conduct the hearing virtually because Xia would not be present in the United States and
the ALJ ruled that she could not testify. See D. & O. at 2.
38     D. & O. at 2.
39     Id.
40     Id. at 6.
41     Id.
42     Id.
                                            7



       The ALJ then found Xia’s lack of testimony fatal to several of her remaining
claims. He held that Xia’s green card fraud claim “can be summarily dismissed as
there [was] no testimony supporting” her allegations. Without her testimony
(among other things), the ALJ also held there was “no evidence” in the record for
her claims for fringe benefits, and he lowered the transportation cost the
Respondent had agreed to pay by $1,391.27. He thus ordered Respondent to pay Xia
$78,914.00 in back wages, accruing from February 25, 2020, through April 7, 2021
(the USCIS notification date), and $3,140.15 in transportation costs, plus interest.43

       Xia timely filed a Petition for Review of the D. & O. with the Board generally
challenging the ALJ’s decision and specifically arguing that barring her from
testifying at her own hearing violated due process.

       Neither the Administrator nor the Respondent filed a cross-appeal arguing
the portion of the ALJ’s order rejecting their contention Respondent’s wage paying
obligation ended when she left the country should be modified. Nor has either party
argued that position on appeal: Respondent instead contends the D. & O. should be
affirmed in its entirety; the Administrator has not appeared before us.

                      JURISDICTION AND STANDARD OF REVIEW

       The ARB has jurisdiction to review the ALJ’s decision pursuant to 20 C.F.R. §
655.845.44 Under the Administrative Procedure Act, the ARB, as the Secretary of
Labor’s designee, acts with “all the powers [the Secretary] would have in making
the initial decision . . . .”45 The ARB therefore has plenary power to review an ALJ’s
factual and legal conclusions de novo.46

      The Board reviews an ALJ’s procedural rulings under an abuse of discretion
standard.47 An ALJ abuses their discretion if they: (1) base the decision on an error


43    Id. at 10-11.
44     Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB
decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020).
45   5 U.S.C. § 557(b); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Macks USA, Inc.,
ARB No. 2022-0038, ALJ No. 2017-LCA-00013, slip op. at 7-8 (ARB Feb. 21, 2023).
46   Macks USA, Inc., ARB No. 2022-0038, slip op. at 8 (citing Mehra v. W. Va. Univ.,
ARB No. 2021-0056, ALJ No. 2017-LCA-00002, slip op. at 4 (ARB Dec. 21, 2021)).
47     Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v. Strates Shows, Inc., ARB No. 2015-
0069, ALJ No. 2014-TNE-00016, slip op. at 3 (ARB Aug. 16, 2017) (citing Walia v. Veritas
Healthcare Sols., LLC, ARB No. 2014-0002, ALJ No. 2013-LCA-00005, slip op. at 5 (ARB
Feb. 27, 2015)).
                                             8


of law or use the wrong legal standard; (2) base their decision on a clearly erroneous
factual finding; or (3) reach a conclusion that, though not necessarily the product of
a legal error of a clearly erroneous finding, cannot be located within the range of
permissible decisions.48

                                       DISCUSSION

1. The ALJ abused his discretion by denying Xia the ability to participate
   at the hearing without following binding precedent.

       The ALJ ostensibly relied on the OALJ Rules of Practice and Procedure to
bar Xia’s testimony from mainland China and Macau. The relevant regulation he
cited, 29 C.F.R. § 18.81(c), states “For good cause and with appropriate safeguards,
the judge may permit a party to participate in an open hearing by contemporaneous
transmission from a different location.”49

       The ALJ’s decision to bar Xia’s participation, however, did not actually relate
to any technical issue associated with testifying from a foreign location as might be
suggested by the text of the regulation. OALJ has for years routinely conducted
remote hearings and consistently allowed overseas testimony on the Microsoft
Teams platform. The ALJ, in fact, specifically acknowledged “we do a lot of foreign
cases [on Teams]” and that “[l]ast week I did two cases, one out of Peru and one out
of North Macedonia.”50 He reasoned “the way I see it,” Xia therefore would either
need to come to the United States for the hearing or testify “via Microsoft Teams
from outside of China[.]”51

       The sole basis for the ALJ’s conclusion was his perception that Chinese law
categorically prohibits testimony from mainland China and that Xia had failed to
satisfy the extra-statutory conditions he had imposed to allow her to testify from
Macau. Unfortunately, in making those determinations, he ignored the framework a
U.S. tribunal must first follow under binding Supreme Court precedent prior to
enforcing a foreign blocking statute in U.S. litigation.

      Broadly speaking, a blocking statute is a law in one jurisdiction intended to
prevent application in that jurisdiction of a law of a second jurisdiction. They often
purport to generally prohibit the transfer of information—including deposition and

48     Petitt v. Delta Air Lines, Inc., ARB No. 2019-0087, ALJ No. 2018-AIR-00041, slip op.
at 5 (ARB Aug 26, 2020) (quoting Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d
620, 627 (2d Cir. 2018)).
49     29 C.F.R. § 18.81(c).
50     February 6, 2023 Telephonic Status Hearing Transcript at 8.
51     Id. at 9-10.
                                                9


trial testimony—for the purposes of litigation, and they often limit the means of
service of process of foreign discovery requests on citizens within a nation’s borders
to procedures contained in treaties such as the Hague Convention on Service of
Process.52

       Foreign blocking statutes typically are framed in absolute terms. But U.S.
courts have been far from absolute regarding their enforcement in U.S. litigation.
Counter to the ALJ’s determination that the mere existence of a blocking statute
rendered Xia unable to participate and testify from China or Macau, the United
States Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct
for S. Dist. of Iowa long ago held that “[foreign blocking] statutes do not deprive an
American court of the power to order a party subject to its jurisdiction” to provide
testimony even if the testimony “may violate that statute.”53

       The Aerospatiale Court established a straightforward procedure that must be
followed in deciding whether to enforce a foreign blocking statute or follow U.S. law.
Any party seeking enforcement of the blocking statute first bears the burden of
demonstrating that the foreign law bars the production of evidence or testimony at
issue.54 “In order to meet that burden, the party resisting discovery must provide
the Court with information of sufficient specificity to allow it to determine whether
the discovery sought is indeed prohibited by foreign law.”55 If the party resisting
discovery meets that initial burden, the court must then determine under the
particular circumstances of the case whether to order the production of evidence
despite it, with the ultimate burden remaining on the party resisting discovery.56

      Since Aerospatiale, courts have frequently applied a five-factor test to steer
that determination.57 The Aerospatiale Court, however, expressly refused to

52        In re Anschuetz & Co., 754 F.2d 602, 614 n.29 (5th Cir. 1985).
53     Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482
U.S. 522, 544 n.29 (1987) (Aerospatiale).
54    Wultz v. Bank of China Ltd., 942 F. Supp. 2d 452, 460 (S.D.N.Y. 2013) (citing
Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 207 (E.D.N.Y. 2007)).
55        Wultz, 942 F. Supp. 2d at 460 (quoting Alfadda v. Fenn, 149 F.R.D. 28, 34 (S.D.N.Y.
1993)).
56     See, e.g., USCO S.p.A. v. ValuePart, Inc., No. 2:14-cv-02590-JPM-tmp, 2015 WL
11120573, at *2 (W.D. Tenn. Feb. 18, 2015) (“A party which seeks the application of the
Hague Evidence Convention procedures rather than the Federal Rules of Civil Procedure
bears the burden of persuading the trial court of the necessity of proceeding pursuant to the
Hague Evidence Convention.”) (internal citation omitted).
57     Most courts consider the following five factors when evaluating whether to order the
production of evidence or apply a foreign blocking statute: (1) the importance to the
investigation or litigation of the documents or other information requested; (2) the degree of
                                              10


“articulate specific rules to guide [that] delicate task.”58 Rather, it instructed lower
courts to adjudicate conflicts based on their “knowledge of the case and of the claims
and interests of the parties and the governments whose statutes and policies they
invoke.”59 While at first blush it may seem counterintuitive, a seemingly
overwhelming majority of courts since Aerospatiale have since ordered parties (and
nonparties) to violate foreign law and produce evidence for use in U.S. litigation—
often in more intrusive circumstances than those at issue here.

      Courts have, for example, consistently ordered parties who have not initiated
the suit to violate blocking statutes.60 Courts have also held that individuals can
waive the application of blocking statutes and service requirements either
voluntarily through contract or involuntarily through conduct.61 And courts have
even ordered non-parties to litigation to produce discovery under the threat of
sanction in violation of their own country’s banking laws.62


specificity of the request; (3) whether the information originated in the United States;
(4) the availability of alternative means of securing the information; and (5) the extent to
which noncompliance with the request would undermine important interests of the United
States, or compliance with the request would undermine the important interests of the
state where the information is located. Aerospatiale, 482 U.S. at 544 n.28; see, e.g. Linde v.
Arab Bank, PLC, 463 F. Supp. 2d 310, 314-15 (E.D.N.Y. 2006) (citing RESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 442(1)(c)) (1987).
58     Aerospatiale, 482 U.S. at 546.
59     Id.
60     See, e.g., Munoz v. China Expert Tech., Inc., No. 07 Civ. 10531 (AKH), 2011 WL
5346323, at *3 (S.D.N.Y. Nov. 7, 2011) (ordering discovery despite the Chinese blocking
statute); Sofaer Glob. Hedge Fund v. Brightpoint, Inc., No. 1:09-CV-01191-TWP-DML, 2010
WL 4701419, at *5 (S.D. Ind. Nov. 12, 2010) (ordering discovery despite a French blocking
statute); Gucci Am., Inc. v. Curveal Fashion, No. 09 Civ. 8458 (RJS) (THK), 2010 WL
808639, at *8 (S.D.N.Y. Mar. 8, 2010) (ordering discovery despite a Malaysian blocking
statute).
61     See, e.g., Image Linen Servs., Inc. v. Ecolab, Inc., No. 5:09-cv-149-Oc-10GRJ, 2011
WL 862226, at *4 (M.D. Fla. Mar. 10, 2011) (potential trial witness agreed to “waive the
formalities of the Hague Convention.”); Boss Mfg. Co. v. Hugo Boss AG, No. 97 Civ. 8495
(SHS) (MHD), 1999 WL 20828, at *1 (S.D.N.Y. Jan. 13, 1999) (“[D]efendant reports that the
witness will waive the applicability of the Hague Convention[.]”); Cooper Indus., Inc. v.
British Aerospace, Inc., 102 F.R.D. 918, 918-19 (S.D.N.Y. 1994) (defendant waived right to
protection from discovery requests through its conduct).
62      See, e.g., Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1478-79 (9th
Cir. 1992) (affirming order of production notwithstanding Chinese secrecy laws); Motorola
Credit Corp. v. Uzan, 73 F.Supp.3d 397, 403 (S.D.N.Y. 2014) (ordering banks in France, the
United Arab Emirates, and Jordan to produce documents in violation of their secrecy laws);
Brit. Int’l Ins. Co. v. Seguros La Republica, S.A., No. 90 Civ. 2370 (JFK) (FM), 2000 WL
713057, at *10-11 (S.D.N.Y. June 2, 2000) (declining to defer to Mexican bank secrecy laws).
                                             11



       Indeed, one commentator documented that in the first twenty-five years after
Aerospatiale, U.S. courts considered whether to prospectively order (rather than to
simply permit) at least forty-two individual violations of foreign blocking statutes.
Courts affirmatively ordered parties to violate the foreign country’s law in thirty-
seven of those instances.63 In each, the relevant foreign blocking provided for both
civil and criminal penalties.64

       Here, by contrast, OALJ need not order Xia to violate Chinese law for her to
participate in a hearing on her own claim; she has expressed a willingness to testify
from either mainland China or Macau. With this backdrop in mind, two
fundamental interests compel us to remand this case to allow her to do so. Courts
most frequently have refused to enforce blocking statutes if doing so would:
(1) cause no serious foreign state interest to be undermined; and (2) not constitute
an undue hardship on litigants.65 Both factors strongly favor allowing Xia’s
testimony in this case.

       First, following U.S. law instead of the Hague Convention procedures in these
circumstances does not undermine any serious Chinese interest. Respondent, the
ALJ, and the Administrator have all failed to demonstrate that China has ever
prohibited the testimony of a Chinese national seeking compensation under a U.S.
statute. Nor have the parties in this case identified any instance where any other
nation has enforced a blocking statute against its own citizen’s attempt to assert
their rights.

      Instead, the cases cited by the ALJ rely on Article 277 of the Chinese Civil
Procedure Law.66 Article 277 is a general civil statute broadly designed to protect

63      M.J. Hoda, The Aérospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes
and What Foreign States Can Do About It, 106 CALIF 231, 234 (2018) (citing Gary B. Born
and Peter B. Rutledge, International Civil Litigation in American Courts 972 (5th ed.
2011)).
64     Id.
65      See Sylejmani v. Flour Conops, Ltd., BRB No. 2022-0259, ALJ No. 2020-LDA-02274,
slip op. at 10 (BRB May 26, 2023) (citing Linde v. Arab Bank, PLC, 706 F.3d 92, 114 (2d
Cir. 2013) (“The record . . . does not show that defendant or its employees have been
prosecuted for the Bank’s voluntary production in other cases.”); Chevron Corp. v. Donziger,
296 F.R.D. 168, 207 (S.D.N.Y. 2013) (“The record reveals that [the objecting entity] has
provided [similar] documents and materials throughout the history of this case when such
materials were thought helpful . . . Not once has he been prosecuted or subject to a penalty.
The absence of any such evidence weighs against a finding that a party faces hardship[.]”)).
66    Order on Four Pending Motions and Scheduling Hearing at 2. Article 277 is the
predecessor and identical to Article 284. U.S. courts have translated Article 277 as follows:
                                                12


Chinese citizens from vexatious discovery and from providing information
generated within China’s borders.67 Neither concern is implicated here. On the
contrary, Xia strongly wishes to testify—and has shown a willingness to go to great
measures to do it—in an action she filed under a U.S. statute subject to U.S.
jurisdiction covering things that occurred exclusively to her while she was in the
United States. As one court has observed, there is a lack of “any evidence that
Article 277 has ever been enforced against discovery activities relating to U.S.
litigation” in these circumstances.68

       With good reason. Far from protecting her interests, barring Xia from
participating in the hearing turns the purpose of Article 277 on its head by
preventing her from securing compensation for harms she allegedly suffered while
outside of China, while simultaneously shielding the foreign employer who allegedly
harmed her. We conclude from the purpose of Article 277 and China’s lack of
enforcement of it that China has no real interest in preventing Xia’s testimony from
mainland China or Macau.69


              Request for and to provide judicial assistance shall be made
              through channels prescribed by international treaties concluded
              or acceded to by the People’s Republic of China; or in the absence
              of such a treaty, shall be made through diplomatic channels.
              A foreign embassy or consulate to the People’s Republic of China
              may serve process on and investigate and collect evidence from
              its citizens but shall not violate the laws of the People’s Republic
              of China and shall not take compulsory measures.
              Except for the circumstances in the preceding paragraph, no
              foreign authority or individual shall, without permission from
              the competent authorities of the People’s Republic of China,
              serve process or conduct investigation and collection of evidence
              within the territory of the People’s Republic of China.
Glam and Glitz Nail Design, Inc. v. Igel Beauty, LLC, No. SA CV 20-00088-JVS (DFMx),
2022 WL 17078947, at *1 (C.D. Cal. Sept. 30, 2022).
67    Inventus Power v. Shenzhen Ace Battery, 339 F.R.D. 487, 504 (N.D. Ill. 2021) (citing
TruePosition, Inc. v. LM Ericsson Telephone Co., No. 11-4574, 2012 WL 707012, at *5 (E.D.
Pa. Mar. 6, 2012)).
68     Id. at 6 (internal quotation omitted).
69     The four cases relied on by the ALJ do not change this calculation. China did not
enforce its blocking statute in any of them. Rather, in Jling, 2019 WL 1441130, at *11, the
court struck a deposition that had already taken place in mainland China—without any
indication China objected to it—and without balancing the factors mandated by
Aerospatiale. Similarly, Glam, 2022 WL 17078947, relied primarily on Jling with very little
                              [footnote continued on next page]
                                              13



       Second, prohibiting Xia’s testimony has created enormous hardship for her.
Xia’s testimony is fundamental. As the ALJ recognized, she alone witnessed many
of the key events in this matter, and he explicitly informed her that “if you want to
present your case, you’re going to have to testify about certain things that happened
because only you have knowledge from your point of view about those things.”70
Similarly, Respondent’s counsel remarked “this is a case where the credibility of
witnesses is of tantamount importance” and “I think there’s some very real
substantive due process concerns if we’re not allowed to conduct the hearing in
person[.]”71 These warnings were not merely speculative; they materialized when
the ALJ summarily denied Xia’s green card claim outright based on the lack of
testimony to support it.72

                           [footnote continued from previous page]
discussion while at the same time acknowledging that another court applying Aerospatiale
ordered a deposition to take place in mainland China. Similarly, Wang v. Hull, No. C18-
1220RSL, 2020 WL 4734930, at *1 (W.D. Wash. June 22, 2020) also ignored Aerospatiale,
baldly referring to “U.S. caselaw,” “Article 277,” and “the State Department’s Advisory”
before summarily ordering a deposition take place in Macau, among other possible places.
Not to be undone, Su v. Sotheby’s Inc., No. 17-CV-4577 (VEC), 2019 WL 4053917, at *3
(S.D.N.Y. Aug. 28, 2019) refers to the same general State Department advisory, does not
mention Aerospatiale, and simply concludes “as the record stands today, there is a non-
negligible risk that swearing an oath and answering deposition questions, even those posed
remotely, could violate Chinese law—an issue that Plaintiffs have failed to address in
proposing their alternative.” Determining whether something might violate Chinese law,
however, is only the first step of the Aerospatiale analysis.
        Moreover, the State Department website advisory that all of these cases (and the
ALJ) rely on merely links China’s Declarations and Reservations to the Hague Convention
before admitting (in all caps no less) that it “is provided for general information only,” and
“may not be accurate in a specific case,” before just as emphatically concluding “questions
involving interpretation of specific foreign laws [therefore] should be addressed to the
appropriate foreign authorities or foreign counsel.” U.S. DEP’T OF STATE, BUREAU OF
CONSULAR AFFAIRS, CHINA JUDICIAL ASSISTANCE INFORMATION, https://
travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-
Information/China.html (all capitals omitted).
70     February 6, 2023 Telephonic Status Hearing Transcript at 8.
71     November 30, 2022 Telephone Conference Transcript at 6.
72      The critical nature of Xia’s testimony weighs heavily in her favor of allowing her to
testify under the Aerospatiale factors. See, e.g., Luminati Networks Ltd. v. Teso LT,
No. 2:19-CV-00395-JRG, 2020 WL 6815153, at *1-2 (E.D. Tex. Oct. 28, 2020) (weighing
Aerospatiale factors, determining no alternative means of securing requested information,
and granting requestor’s motion to obtain deposition); Triumph Aerostructures, LLC v.
Comau, Inc., No. 3:14-cv-2329-L, 2015 WL 5502625, at *5-16 (N.D. Tex. Sept. 18, 2015)
(weighing Aerospatiale factors, determining no alternative means of securing requested
                                                14



        Moreover, denying Xia’s fundamental right to participate in her own hearing
flatly contradicts U.S. law. Xia legitimately filed her claim seeking relief under the
INA subject to U.S. jurisdiction and U.S. enforcement. Doing so entitled her to have
her claim adjudicated in accordance with the Act and its accompanying regulations.
That involves providing all parties an opportunity to be heard in a meaningful
manner and at a meaningful time, including the ability to participate at hearings
and to present their respective cases by submitting evidence on the relevant issues,
rebuttal evidence, and cross-examining witnesses.73

        Conversely, allowing her testimony from China creates only an extremely
speculative, hypothetical risk for the other litigants (and the ALJ). China has been
a signatory to the Hague Convention since 1991 with limitations on discovery from
the beginning. No evidence in the record suggests that China has in those thirty-
three years ever sanctioned foreigners for taking testimony from mainland China,
let alone foreigners who never set foot in the country. Had the ALJ taken Xia’s
testimony from Macau, which Xia had already agreed to, whatever wholly
speculative risk that might exist would have been eliminated entirely, as recognized
by the same cases the ALJ relied on (and by the ALJ himself) in proposing Macau
as an alternative.74

      Finally, enforcing blocking statutes in these and similar circumstances
unquestionably undermines the enforcement of the INA, given the Act’s purpose
and the people it is designed to protect. One of the purposes in the enforcement of
the Act is to protect American workers’ interests by ensuring the benefits and

documents, and granting in part and denying in part requestor’s motion to obtain
documents from non-party); Linde, 463 F. Supp. 2d at 315 (weighing Aerospatiale factors
and determining “the discovery sought here is essential to the proof of plaintiffs’ case.
Without it, the plaintiffs cannot prove the defendant’s involvement in and knowledge of the
financial transactions that are the basis of the plaintiffs’ theory of liability.”), aff’d, 706 F.3d
92 (2d. Cir. 2017); Strauss, 249 F.R.D. at 441-43, 456 (weighing Aerospatiale factors,
determining discovery sought is vital to the litigation of plaintiffs’ claims and no other
means exist to obtain discovery, and ordering production of bank records and documents
relating to bank customer).
73    See 20 C.F.R. § 655.825; 29 C.F.R. §§ 18.21(a), 18.81(c); see also Matthews v.
Eldridge, 424 U.S. 319, 349 (1976); Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).
74     Order on Four Pending Motions and Scheduling Hearing at 2; see also Inventus
Power, 339 F.R.D. at 506-07 (finding that depositions can lawfully proceed in Macau and
permitting them to take place there); Wang, 2020 WL 4734930, at *1 (authorizing remote
testimony from a place like Macau); Dagen v. CFC Grp. Holdings Ltd., No. 00 Civ. 5682,
2003 WL 22533425, at *2 (S.D.N.Y. Nov. 7, 2003) (permitting testimony by telephone of
witnesses based in Hong Kong); Homedics-USA, Inc. v. Yejen Indus., Ltd., No. 05-70102,
2007 WL 9700635, at *2 (E.D. Mich. June 15, 2007) (noting “that telephonic depositions are
permissible in Hong Kong, as they are in the United States.”).
                                              15


protections provided to U.S. workers are extended to similarly-situated alien
workers to prevent a race to the bottom in the relevant labor market.75 U.S. Courts
have long recognized U.S. interests in enforcing U.S. law present a high bar for
foreign blocking statutes to overcome.76

       We thus hold that by not applying Aerospatiale before barring Xia’s
testimony, the ALJ abused his discretion, and that Aerospatiale further favors
enforcing U.S. law rather than going through Hague Conventions process to
arrange her testimony from mainland China. Because the ALJ’s error was not
harmless, we need not weigh whether it rises to the level of a due process violation
as Xia claims.77 Moreover, even if we did not view this as a pure error of law and
instead viewed it as a mixed question of law and fact, we would still come to the
same conclusion under our plenary standard of review.78

        We therefore vacate the ALJ’s findings concerning Xia’s green card fraud
claim and requests for fringe benefits and reasonable transportation costs. The ALJ
is directed upon remand to take such further actions as necessary including
allowing her testimony from Macau or another agreed upon location without the
ALJ’s conditions and certifications.79 Following the remote hearing, and in light of
Xia’s testimony, the ALJ shall reassess Xia’s green card fraud claim and requests
for fringe benefits and reasonable transportation costs.80


75     See 20 C.F.R. § 655.0(a)(3).
76      See, e.g., Reino De Espana v. Am. Bureau of Shipping, No. 03 CIV 3573 LTSRLE,
2005 WL 1813017, at *3-4 (S.D.N.Y. Aug. 1, 2005) (ordering discovery over government of
Spain’s objection and finding that under Aerospatiale “a privilege that is asserted pursuant
to foreign law does not apply in this forum of its own force” and that the United States has
a “substantial interest in fully and fairly adjudicating matters before its courts.”) (internal
citations and quotation omitted).
77    See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (an error is not harmless if it could
have made a difference in the outcome of an issue).
78     Macks USA, Inc., ARB No. 2022-0038, slip op. at 8 (citing Mehra, ARB No. 2021-
0056, slip op. at 4).
79      We reiterate that Xia is not limited to providing testimony from Macau but
specifically mention it here because she had previously agreed to do so. If Xia is no longer
able to travel to Macau, the ALJ shall work with Xia to find a suitable location consistent
with this decision.
80      See, e.g., Cabinets To Go, LLC v. Qingdao Haiyan Real Est. Grp., LLC, No. 3:21-civ-
00711, 2023 WL 3922640, at *6 (M.D. Tenn. May 30, 2023) (holding under Aerospatiale that
the FRCP rather than Hague Convention applied to Chinese nationals in China opposed to
discovery and ordering they come to the United States for depositions despite the risk of
civil and criminal penalties because “speculative interests” in ‘“potentially’ violating a
Chinese law[] do not outweigh the interests of the United States[.]”) (emphasis added).
                                                16


2. The ALJ erred in determining that Respondent effected a bona fide
   termination.

       An employer seeking to hire a temporary worker under the H-1B program
must commit to paying the prospective employee wages for the length of the LCA.81
The regulations provide two exceptions to an employer’s wage-paying obligation.
The first exception occurs when an H-1B worker “experiences a period of
nonproductive status due to conditions unrelated to employment which take the
nonimmigrant away from [their] duties at [their] voluntary request and
convenience.”82 The second exception—at issue in the present appeal—applies when
there has been a “bona fide termination of the employment relationship.”83

       The applicable regulation provides:

              Payment need not be made if there has been a bona fide
              termination of the employment relationship. DHS
              regulations require the employer to notify the DHS that
              the employment relationship has been terminated so that
              the petition is canceled . . ., and require the employer to
              provide the employee with payment for transportation
              home under certain circumstances.[84]

The Board has held that a bona fide termination occurs when the employer:
(1) gives notice of the termination to the worker; (2) gives notice to the Department
of Homeland Security (USCIS); and (3) under certain circumstances, provides the
non-immigrant with payment for transportation home.85 If an employer discharges
the employee but does not make a bona fide termination, “its obligation to pay [the
employee] the ‘actual wage’ continue[s] until the expiration of [the employee’s]
authorized period of employment.”86

      In the present case, the ALJ determined that Respondent effected a bona fide
termination on April 7, 2021, and he extended its wage paying obligation through
that date under the second exception, rejecting the position of the Respondent and

81     20 C.F.R. §§ 655.731(c)(1), (c)(7)(i).
82     Id. at § 655.731(c)(7)(ii).
83     Id.
84     Id.
85     Manoharan, ARB No. 2021-0060, slip op. at 10 (citations omitted); see 20 C.F.R.
§ 655.731(c)(7)(ii).
86     Manoharan, ARB No. 2021-0060, slip op. at 12 (citing Mao v. Nasser Eng’g &
Computing Servs., ARB No. 2006-0121, ALJ No. 2005-LCA-00036, slip op. at 10 (ARB Nov.
26, 2008)).
                                             17


the Administrator that the wage paying obligation ended when Xia left the country
under the first exception.87 As an initial matter, we agree entirely with the ALJ’s
conclusion that the previous position of the Respondent and the Administrator
conflates the two exceptions and we affirm it on the merits and because it is
unchallenged on appeal.

       On appeal, Xia argues Respondent failed to satisfy the three mandatory
elements to effect a valid bona fide termination.88 Specifically, Xia claims that
Respondent: (1) provided no credible proof it notified her of the termination in
February 2020; (2) failed to notify USCIS until April 2021; and (3) never paid for
her transportation back to China.89

       Respondent met the first two requirements. Respondent notified Xia it
terminated her employment during an in-person meeting on February 24, 2020, and
the termination was memorialized by a letter left on her desk that same day.90 The
record contains: (1) a sworn declaration from Respondent’s president that it decided
to terminate on February 20, 2020; (2) the February 24, 2020 termination letter;
and (3) the termination letter’s metadata, which verifies that the document was
created and last modified on February 20, 2020.91 Additionally, Xia’s actions
following February 24 indicate that she received notice she was no longer employed
by Respondent. Xia never returned to work at Respondent’s office and later, applied
for unemployment benefits with the Texas Workforce Commission.92

       Regarding the second requirement, Respondent notified USCIS on April 7,
2021, that it had terminated Complainant on February 24, 2020.93

       As to the third requirement, however, it is undisputed that Respondent did
not pay for Xia’s return transportation costs to China.94 Instead, the ALJ found that
Respondent satisfied this requirement because “Respondent made a good faith
attempt to provide Xia with transportation costs in the February 2020 termination
letter.”95 The ALJ reasoned this effort qualified as a “good faith attempt” because:


87    D. & O. at 8.
88    Opening Brief of Appellant (Comp. Br.) at 18-21.
89    Id. at 19-20.
90    D. & O. at 5; Joint Exhibit (JX) 21.
91    D. & O. at 5; JX-28, JX-31.
92    D. & O. at 5; JX-27.
93    D. & O. at 6; JX-9.
94    D. & O. at 7.
95    Id.
                                             18


(1) Xia left the letter on her desk which deprived her of important information that
would have allowed Respondent to comply with the regulations; (2) the letter
contained an offer to pay for return transportation costs;96 and (3) “Xia remained in
the United States for nine months after she was terminated indicating she did not
have the intention to immediately leave[,]” and thus, it was “not reasonable to
expect an employer to pay for return transportation costs when it does not know
when or whether the employee is leaving the county or what those costs amount
to.”97

      We disagree. Although the ALJ correctly identified good faith exceptions to
an employer’s obligation to pay for travel expenses to effectuate a bona fide
termination,98 we find under our plenary review of the facts and law that
Respondent did not establish a good faith exception in this case. Rather, it acted in
bad faith by disregarding its regulatory burdens throughout the termination
process, including not legitimately offering to pay her travel expenses.99

      The exceptions to the obligation to pay for travel expenses are contingent on
an employer’s good faith attempt to comply with the law or an employee’s change to
another lawful status.100 The Board has examined an employer’s good faith attempt



96      Id. In his D. & O., the ALJ distinguished the Board’s decision in Jinna v. MPRSoft,
Inc., because in his view, Respondent provided Complainant with information about how to
receive her transportation costs, while in Jinna, the employer notified the employee that
transportation costs would be provided but did not indicate how to obtain the costs. Jinna v.
MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039, slip op. at 8 n.4 (ARB Apr.
15, 2020). As further discussed below, the Board disagrees.
97     D. & O. at 7.
98     Id.
99      Although the remaining analysis focuses on an employer’s burden to pay for return
transportation costs and exceptions to pay for these costs, we note Respondent waited
nearly fourteen months to comply with the second regulatory requirement, notifying USCIS
of the termination, which further exemplifies Respondent’s disregard for its regulatory
burdens.
100     The present case does not involve an employee’s change to another lawful status.
However, we note the following cases alleviating the employer of its burden to provide for
the reasonable transportation costs when an employee changes to another lawful status:
Puri v. Univ. of Ala. Huntsville, ARB No. 2013-0022, ALJ Nos. 2008-LCA-00038, 2012-LCA-
00010 (ARB Sept. 17, 2014) (holding payment of return transportation costs was not
necessary to effect a bona fide termination where employee married a United States citizen
and employer knew they did not want return transportation to their country of origin);
Batyrbekov v. Barclay’s Capital, ARB No. 2013-0013, ALJ No. 2011-LCA-00025 (ARB July
16, 2014) (holding payment of return transportation costs was not necessary to effect a bona
fide termination because H1B employee secured USCIS approval for change of employer).
                                             19


to comply with the law in Baiju v. Fifth Ave. Comm.,101 Adm’r, Wage & Hour Div.,
U.S. Dep’t of Lab. v. Univ. of Miami,102 and Childs v. DimensionalMechanics, Inc.103
In Baiju and Univ. of Miami, the employer offered to pay return transportation
costs to their former employee but the employee did not accept the offer.104 In
Childs, the employer made repeated attempts to contact the employee to pay for
return transportation costs but never received a response from the employee.105

      Comparatively, Respondent informed Xia that she was “eligible to receive
transportation costs to return abroad” via the termination letter, which it knew Xia
did not open and left on her desk.106 And even if she had read it, it did not satisfy
Respondent’s obligation to pay her transportation costs.

        First, the termination letter only notified Xia that she could receive
transportation costs, which were contingent on Xia’s response. At no time did
Respondent produce an actual check or airplane ticket that Xia could have accepted
or denied. Nor did Respondent simply say if she did not reply in the window it
provided, reasonable return costs would be included in her final check. Rather,
counter to the ALJ, we find the language in the termination letter—and the failure
to pay transportation costs—analogous to the situation in Jinna v. MPRSoft, Inc.
There, an employer e-mailed its employee stating that “H1B will be terminated and
fligh [sic] back tickets will be provided with effective date of 2/7/2017.”107 The Board
noted that “stating return flights ‘will be provided’ does not constitute proof of
actual payment of reasonable transportation cost for [the employee’s] return to his
home country.’”108

       So too here. In both scenarios, the employers only notified the employees that
they were eligible for return transportation costs or would receive transportation
tickets; there were no formal offers made to pay for return transportation costs,

101   Baiju v. Fifth Ave. Comm., ARB No. 2010-0094, ALJ No. 2009-LCA-00045 (ARB
Mar. 30, 2012).
102    Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Univ. of Miami, ARB Nos. 2010-
0090, -0093, ALJ No. 2009-LCA-00026 (ARB Dec. 20, 2011).
103    Childs v. DimensionalMechanics, Inc., ARB No. 2021-0001, ALJ No. 2017-LCA-
00008 (ARB Sept. 30, 2021).
104     Baiju, ARB No. 2010-0094, slip op. at 9; Univ. of Miami, ARB Nos. 2010-0090, -0093,
slip op. at 9 (“University offered return transportation (plus $5,000.00 additional for moving
costs) to [the employee].”).
105    Childs, ARB No. 2021-0001, slip op. at 7.
106    D. & O. at 3.
107    Jinna v. MPRSoft, Inc., ALJ No. 2018-LCA-00039, slip op. at 14 (ALJ July 16, 2019).
108    Jinna, ARB No. 2019-0070, slip op. at 8 n.4.
                                               20


actual payments made, or tickets purchased on the employees’ behalf as compared
to the attempts made in Baiju, Univ. of Miami, and Childs.

       Second, the information provided in Complainant’s termination letter was
conditioned on an arbitrary and unreasonable deadline. The termination letter
states, “[y]ou are also eligible to receive transportation costs to return abroad.
Please notify [Respondent] of your desire to do this by March 1, 2020.”109 The
termination letter was left on Xia’s desk on February 24, 2020, six days before the
deadline. The regulations do not authorize employers to limit their liability for
reasonable costs of return transportation by imposing rapidly expiring deadlines on
terminated employees.110

       Third, the regulatory burden to pay for return transportation costs—or to
demonstrate that a good faith effort was made to pay those costs—remains on the
employer, it is not transferred to the employee through arbitrary deadlines.111 Even
if Xia remained unaware of Respondent’s invalid 6-day deadline by refusing to open
her termination letter to avail herself of the fleeting offer to pay her transportation
costs, Respondent should have made additional attempts to pay for Xia’s return
transportation costs to fulfill its regulatory obligation. This is especially true when,
as was the case here, Respondent knew that Xia was not in possession of the
termination letter since it remained unopened on her desk after her termination.112

      Finally, Xia requested payment for her return transportation costs on
October 27, 2020, long before Respondent notified USCIS in April 2021 of her
termination.113 Yet Respondent did not tender payment or respond to Xia’s request
in any manner. Rather, it simply ignored her request.114

       The ALJ created an argument to relieve Respondent of its burden to pay
return transportation costs, stating that while he was “not sure why [Respondent]
did not tender payment at that time” he could speculate [Respondent] mistakenly
believed it was no longer under any obligation to [pay] because Xia did not timely
request [payment] pursuant to the termination letter.”115 Again, we disagree.




109   D. & O. at 3.
110   20 C.F.R. § 655.731(c)(7)(ii); 8 C.F.R. § 214.2(h)(4)(iii)(E).
111   See 20 C.F.R. § 655.731(c)(7)(ii); 8 C.F.R. § 214.2(h)(4)(iii)(E).
112   D. & O. at 3; JX-13, JX-28.
113   JX-27.
114   D. & O. at 3.
115   Id. at 7 n.8.
                                            21


       Although Xia waited eight months before requesting reimbursement for
transportation costs from Respondent, that fact alone does not excuse an employer’s
regulatory obligations to pay for such costs. In this case, it is impossible to
reasonably argue that Respondent had a good faith belief that it was excused from
paying Xia’s transportation costs at a time when it had yet to meet its obligation to
notify USCIS that Xia had been terminated. And even if Respondent had made such
an argument, its failure to notify USCIS meant that at the time Xia requested
payment of her return travel costs she was still in possession of a valid visa; thus,
any uncertainty about the timing of her departure to China was due to
Respondent’s own disregard for its regulatory obligations. Under those
circumstances, we would not have found an 8-month delay in Xia’s return to China
sufficient to absolve Respondent of its obligations under the law. Furthermore, if
Respondent mistakenly believed it was no longer under any obligation to pay for
reasonable transportation costs because Xia delayed in making her request,
“ignorance of the law or mistake of law is no defense . . . [and] is deeply rooted in
the American legal system.”116

       Respondent was obligated to pay for return transportation costs following
Xia’s termination. In limited circumstances an employer may demonstrate that it
was relieved of that obligation through a showing of either a good faith attempt to
make payment or a good faith reason why no payment was owing. Respondent has
failed to carry its burden to show that it paid, made a good faith attempt to pay, or
demonstrated that it was not obligated to pay for Xia’s transportation costs.

       Accordingly, we reverse the ALJ’s finding that Respondent effectuated a bona
fide termination. Thus, Respondent owes Xia back wages from February 24, 2020,
through October 2, 2022, the authorized period of employment, plus interest.117



116   OFCCP v. WMS Sols., ARB No. 2020-0057, ALJ No. 2015-OFC-00009, slip op. at 10
(ARB Mar. 8, 2023) (quoting Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 646 (2015)).
117    Xia filed a Motion to Request Front Pay and Other Compensations on May 1, 2024.
Xia requested front pay “from the date of the trial onward until the court comes to a
decision,” emotional distress fees, breach of contract damages, back pay, fringe benefits,
and legal fees. The Board denies Xia’s Motion to Request Front Pay and Other
Compensations.
       First, the Board is only authorized to provide specific remedies under the INA and
its applicable regulations. See 20 C.F.R. § 655.815 (noting the Administrator may prescribe
any remedies, including the amount of back wages assessed, amount of any civil money
penalties assessed, and other remedies assessed). Second, any requests for additional
compensation should have been raised to the ALJ. We decline to consider these new
requests and arguments six months after the briefing deadline. See Bagri v. Erection &
Welding Contractors, LLC, ARB No. 2020-0033, ALJ No. 2020-LCA-00003, slip op. at 2 n.5
                                              22


                                        CONCLUSION

      We REVERSE the ALJ’s finding that Respondent effected a bona fide
termination. We REMAND the case to the ALJ (1) to enter judgment on back
wages for Xia consistent with this decision and (2) for further proceedings to
reassess Xia’s green card fraud claim, requests for fringe benefits, and reasonable
transportation costs.

       SO ORDERED.



                                           ____________________________________
                                           ANGELA W. THOMPSON
                                           Administrative Appeals Judge




                                           ____________________________________
                                           JONATHAN ROLFE
                                           Administrative Appeals Judge




(ARB Jan. 29, 2021) (noting the ARB declines to consider arguments that a party raises for
the first time on appeal); see also Frantz v. Hoselton Auto. Grp., ARB Nos. 2021-0050, -0051,
-0052, ALJ No. 2018-MAP-00003, slip op. at 10-11 n.72 (ARB Nov. 17, 2023) (noting the
ARB does not consider arguments made for the first time in reply briefs). Third, as to the
legal fees request, Xia alleges that she paid $3,000.00 for legal consultation fees. No
attorney filed a Notice of Appearance before the OALJ or Board on behalf of Xia.
Additionally, Xia did not attach a receipt or proof of payment of the alleged legal fees to the
motion. Instead, the only exhibit attached to the motion appears to list of other costs
incurred, internet phone fees, international roaming charge fees, U.S. visa application fees,
U.S. Embassy transportation fees, and Hong Kong and Macao entry permit visa fees.
       Given that the Board has remanded this matter to the ALJ, Xia will be entitled to
back wages from February 24, 2020, to October 2, 2022, plus interest, and potentially
additional compensations (for her green card fraud claim and requests for fringe benefits
and reasonable transportation costs) as determined by the ALJ following the remote
evidentiary hearing.
                                      CERTIFICATE OF SERVICE



ARB-2023-0046 Ellen Xia v. Lina Ramey (Case No: 2022-LCA-00013)


I certify that the parties below were served this day.




         10/07/2024
     (DATE)                                                        Thomas O. Shepherd, Jr., Esq.
                                                                  Clerk of the Appellate Boards


Andrew J Broadaway                                       Office of the Solicitor, Division of Fair Labor
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                                                                 --Electronic
Ellen Xia
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        --Electronic                                     Law Judges
                                                         200 Constitution Avenue, N.W.
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Hon. Timothy J. McGrath
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Office of Administrative Law Judges
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Street
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Matthew Paul Sallusti
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        --Certified

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        --Certified

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