A Comprehensive Guide Introduction:
H-1B visas provide opportunities for foreign workers with specialized skills to work in the United States. However, employers may sometimes need to terminate the employment of H-1B visa workers for various reasons. This article outlines the procedures and responsibilities involved in terminating H-1B visa workers and provides insights into the implications for both employers and employees.
Clear Notification: Employers must start by providing a clear, written notice of a “bona-fide termination” to the H-1B visa worker. This notice should unequivocally state that the employment relationship has been terminated.
Notify USCIS: Employers are obligated to inform the U.S. Citizenship and Immigration Services (USCIS) through a certified letter when there is any “material change” to the approved H-1B petition. This includes termination of employment. The letter should specify the termination date and request the revocation of the H-1B petition.
Notify U.S. Consulate: It is advisable to inform the antifraud section of the U.S. consulate where the visa stamp was originally issued that the H-1B petition has been withdrawn.
Notify U.S. Department of Labor: Employers should also notify the U.S. Department of Labor about the withdrawal of the labor condition application (LCA).
Transportation Obligation: Due to the termination, employers have a responsibility to provide “reasonable costs of transportation” for the H-1B worker back to their last place of foreign residence. This obligation does not extend to family members or personal belongings. Employers can offer either a direct purchase of a plane ticket or a cash payment, but they cannot force the employee to accept the ticket. If the employee refuses, a statement should be signed to document their refusal.
Grace Period: Since January 2017, H-1B workers have a 60-day grace period from the date of termination to seek new employment before they are required to return to their home country. This change provides more flexibility for both employers and employees.
Documentation and Legal Considerations: Employers should meticulously document all steps taken to comply with immigration laws when terminating an H-1B worker. Layoffs or furloughs may have compensatory obligations under the LCA, and employers should avoid potential discrimination claims by treating H-1B workers similarly to other employees in similar situations. Legal counsel should be consulted to navigate the intricacies of H-1B worker termination.
Conclusion: Terminating H-1B visa workers involves a structured process, including clear notification, informing relevant authorities, and fulfilling transportation obligations. The 60-day grace period introduced in 2017 has made it more manageable for employers to handle workforce changes while affording H-1B workers the opportunity to secure new employment in the United States. Employers must stay informed about the latest regulations and consult with legal experts to ensure compliance and mitigate potential liabilities.