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Terminating an H-1B Employee due to Unavailable Work during COVID-19

Due to the unexpected unavailability of work, employers may need to consider terminating their H-1B employees in response to the COVID-19 pandemic.

Temporary layoffs, furlough, or benching of an H-1B employee due to unavailable work is not permissible. Sponsoring H-1B employers are under strict liability when it comes to paying their H-1B employees even during a nationwide emergency.

If an employer chooses to terminate an H-1B employee, the employer must follow the three essential steps for a bona fide termination:

  1. The employer must notify the H-1B employee of the termination in writing;
  2. The employer must notify USCIS of the termination in writing; and
  3. The employer must offer in writing (preferably provide a check) to pay the H-1B worker for the reasonable costs of return transportation.

In response to COVID-19, the Department of Labor has continued to provide guidance for employers to maintain proper compliance with DOL regulations. Sponsoring H-1B employers should take all necessary steps to ensure LCA compliance and that their H-1B employees are properly paid as work continues to be available, or properly relocated to a different work location following LCA requirements here, or properly terminated, if necessary.

In the event that termination of an H-1B employee becomes necessary, contact a qualified immigration attorney immediately to ensure that all three steps are properly completed.