One of the key elements of an employment relationship for H-1B purposes is the employer’s obligation to pay the required wage until employment is terminated. Several employers assume that termination is effective on the last day of employment. In fact, employers will issue a letter with an “effective date” of termination hoping to stop their obligation to pay the employee. However, this may not be considered bona fide termination of employment in the H-1B context. The Wage and Hour Division imposes a higher burden on the employer when it comes to termination of employment in the H-1B context.
For bona fide termination of employment, the Department of Labor requires the following:
(1) Expressly terminated the employment relationship with the H- 1B worker;
(2) Notified USCIS of the termination so that the H-1B petition may be withdrawn; and
(3) provided the H-1B worker with the reasonable cost of return transportation to his/her country of last residence.
Notwithstanding case specific exceptions that may narrowly apply, this set of requirements imposes a specific burden on the employer. Failing to perform even one of these required acts, could impose a continuing payment obligation. Time and time again, we have seen this lead to fines and penalties imposed on unwary employers.
There are several questions that arise from this obligation,
- What happens when an employee voluntarily resigns, or abruptly leaves employment without notice?
- What if the employee does not wish to accept the employer’s offer of reasonable cost of return transportation?
- How about if the employee requests (read pleads) delaying notifying the USCIS?
- The employee has a pending H-1B petition filed by another employer and wants his current employer to “hold on to the H-1B” as a “backup”?
- What if the employee has filed for adjustment of status and seeks to be employed on EAD?
- Does the Employer notify the USCIS in E-3 and H-1B1 situations where there is no H-1B petition and the USCIS may not have a corresponding file?
This and other questions related to termination were discussed extensively in a series of Administrative Review Board (ARB) decisions. These questions were also handled in recent liaison meetings between the American Immigration Lawyers Association and the Wage and Hour Division (WHD) of the Department of Labor.
Without a doubt, there is no uniform standard when it comes to dealing with unique situations arising from non-conventional arrangements following employment termination. A seasoned immigration practitioner in touch with the latest developments in the field should help guide your actions to conform to the strict standards imposed by the WHD.
As a service to all clients, we offer to notify the USCIS upon termination of employment at no cost. We also respond to questions and guide clients during difficult employment transitions.