Requirements When Terminating an H-1B Employee
As an H-1B employer, you have certain obligations if you terminate the services of an H-1B employee, or they voluntarily leave of their own accord. Under such circumstances we strongly advise that you take the following steps to ensure that the termination is deemed “bona fide” under the immigration rules governing H-1B workers. The below three-step process is the advised means by which this effective termination may be achieved.
When an H-1B employee’s services are terminated before the end date of their petition approvals, you, as the employer must do the following:
As the Employer, you must immediately notify the USCIS in writing at the Service Center that approved the nonimmigrant petition that the foreign national is no longer employed and that you wish to withdraw the H-1B petition. As soon as you advise us of the termination date, we can prepare and send that letter on your behalf as your attorneys on this matter.
The Labor Condition Application must be withdrawn. We can do this for you electronically as soon as you notify us of the termination date.
As the Employer, because you terminated the employee, you must offer to pay the cost of a return ticket to the foreign national’s home country. In order to fully effectuate this last step and ensure it is clearly done, we recommend that you provide the terminated H-1B employee with a letter advising them of the following:
Upon termination, the foreign national will no longer be maintaining H-1B status;
The foreign national should consult their own immigration lawyer concerning their immigration status in the United States and future options to remain here; and
That you, the Employer, are offering the foreign national a return flight home back to their home country at the employer’s expense. Although there is no written law on the procedures governing the employer’s liability for return transportation, we generally advise that if the foreign national accepts the offer, the trip should be made within two weeks of the termination date. The employer should further require that the H-1B employee confirm in writing whether they accept or decline the offer. We can assist in preparing this letter for you as well if requested.
These termination rules govern H-1B employees who are let go (either fired or laid off) before the end date of their petition approvals. They do not apply to those H-1B employees who leave your employment on their own accord, or who leave at the end of their petition approval date. Furthermore, as the Employer, you are liable for the cost of the return trip home for the foreign national only, you are not liable for any of their family members, nor for the costs of their moving personal property.
If you have any questions about these immigration matters, please feel free to click here and reach out to us.