Employer’s Responsibility for Terminating H-1B Employees

While an H-1B employee can be terminated just like a U.S. worker, terminating a H-1B employee involves more than just notifying the employee.  U.S. employers are required to notify U.S. Citizenship & Immigration Services (USCIS) if there has been a material change in the terms and conditions of the H-1B nonimmigrant employment, including if the H-1B beneficiary has been laid-off or otherwise terminated before the end of the employee’s period of authorized stay.

While there are no sanctions provided in the regulation for failing to make a timely notification of termination of an H-1B worker, it is highly recommended that employer notifies the H-1B worker of his termination and subsequently notifies the USCIS of the termination.   Besides notifying the employee and the USCIS, it is also recommended to withdraw the terminated employee’s Labor Conditional Application (LCA) and to offer to pay the H-1B employee’s reasonable cost of return transportation to H-1B employee’s last place of foreign residence. If the H-1B employee voluntarily terminates his or her employment prior to the expiration of the validity of the petitioner, the employee is not considered ‘dismissed’.  Where applicable, all of these steps must be documented clearly and in writing via some form of traceable mail delivery. 

If the terminated employee ever files a complaint with the Department of Labor (DOL) for the non-payment of wages, the employer will have to prove compliance of bona fide termination by documenting steps listed above.  Failure to document bona fide termination may lead to back wages liability as well as interest on back wages. 

Employer’s liability for a reasonable cost of return transportation is only limited to returning the H-1B employee and does not extend to the cost of returning H-1B employee’s family members or property.  Often an employee may not accept the offer of reasonable cost of return transportation and instead may decide to remain in the U.S. by finding another job.

Each individual H-1B termination will present a unique set of circumstances that may require detailed legal analysis by an experienced attorney.  Employers with questions regarding terminating an H-1B employee are encouraged to contact our office.