In the unfortunate circumstance when an employer must terminate an H-1B worker before the end of the validity period of the worker’s visa, failure to follow the correct procedure can be costly. Recently, a manufacturer and supplier of raw materials for industrial products was slapped with a $190,000 back wage assessment by the Department of Labor after the company terminated an engineer without following the steps necessary to effectuate a “bona fide” termination.
A “bona fide termination” of an H-1B worker generally requires three steps:
- the employer must notify the H-1B worker of the termination in writing;
- the employer must notify USCIS of the termination in writing; and
- the employer must offer in writing to pay the H-1B worker for the reasonable costs of return transportation abroad.
If an employer fails to fulfill these requirements, the employer may be found liable by the Department of Labor for back wages potentially all the way until the date on which the employee’s H-1B approval expires.
Many times, employers are concerned with notifying USCIS immediately for fear of harming the worker’s immigration status. However, a Final Rule on High Skilled Workers that went into effect on January 17, 2017 provides H-1B workers with a grace period of up to 60 days (or until their I-94 expires) following the loss of employment, during which they can remain lawfully in the United States and seek sponsorship by a new employer. This 60-day grace period is available to the worker even if USCIS has been notified of the termination.
In the event that a termination of employment becomes necessary for an H-1B worker, contact immigration counsel immediately to ensure that all 3 steps are properly completed. For more information contact firstname.lastname@example.org.
By: Emily Neumann
Emily Neumann is the managing partner at Reddy & Neumann, P.C. and is responsible for the overall functioning of our firm. She consults with company Legal and Human Resources teams to provide top-notch client service and advice regarding their temporary and permanent work visa sponsorship needs among new hires, current employees, and their families.