When an employer terminates an H-1B worker, failing to follow the correct procedure can result in significant financial liability, including back wages owed to the employee. The U.S. Department of Labor (DOL) requires that employers adhere to a process known as a bona fide termination to avoid ongoing wage obligations.

 

Non-Bona Fide Termination and Back Wages Liability:

 

If an employer fails to properly terminate an H-1B worker, the employment relationship is considered to continue, and the employer may be held liable for paying back wages until a bona fide termination is made. This could amount to substantial financial penalties for the employer, particularly if the employee remains in the country under H-1B status.

 

To avoid this, employers must follow a set of steps to ensure that they are compliant with federal regulations regarding H-1B visa terminations.

 

Three Key Steps for a Bona-Fide Termination:

 

   1. Notify the Employee Writing

 

• The employer must provide written notice of termination to the employee. This should be sent both via email and certified mail to ensure proper documentation. By formally notifying the employee, the employer establishes a clear date of termination, which is essential for legal and payroll purposes.

  2. Send a Withdrawal Notice to USCIS

• Employers must also notify the U.S. Citizenship and Immigration Services (USCIS) of the H-1B termination by submitting an official withdrawal letter. This letter should also be sent via certified mail to create a documented paper trail. The withdrawal of the H-1B petition informs USCIS that the employer no longer sponsors the individual, making it a key step in the termination process.

  3. Cease Employment Activities

• Employers should immediately stop trying to place the H-1B employee at a client site or arranging interviews with prospective clients. Continuing to seek employment for the worker contradicts the employer's intent to terminate and could further complicate the bona fide termination process.

By following these three steps, employers can protect themselves from potential liabilities and avoid being required to pay back wages for the period after an ineffective termination.

Termination of H-1B1 and E-3 Visa Workers:

Although H-1B1 (for workers from Chile and Singapore) and E-3 visas (for Australian professionals) do not have specific termination protocols outlined by the Department of Labor or the USCIS, employers can follow similar steps to ensure a proper and lawful termination. By notifying the employee, submitting a withdrawal to USCIS, and stopping employment activities, employers can protect themselves from future wage claims under these visa programs as well.

Conclusion:

Employers must take proactive steps to properly terminate H-1B workers to avoid financial penalties. A bona fide termination involves notifying the employee in writing, sending a withdrawal notice to USCIS, and ceasing employment-related activities. By following these steps, employers can minimize legal risks and avoid having to pay back wages after terminating an H-1B employee. Similarly, adhering to these principles for H-1B1 and E-3 visas can prevent similar liabilities.