End of Employment Issues
It is imperative that Hiring Departments contact ISSS AS SOON AS THEY KNOW that an H-1B position will end, either through voluntary or involuntary means.
Employment terminated by the Employee:
If an H-1B worker voluntarily terminates his or her employment, an employer is not liable for the cost of return transportation abroad [8 C.F.R. § 214.2(h)(4)(iii)(E)]. The employee should depart the United States on the final day of employment with the sponsoring employer, unless he or she has secured H-1B sponsorship of another employer or otherwise changed immigration status as there is no grace period for H-1B Temporary Workers.
Employment terminated by the employer:
If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer must present a check to the employee equivalent to the reasonable costs of return transportation to the alien's last place of foreign residence. Dismissal for any reason, even for cause, triggers this provision. INA § 214(c)(5)(A); 8 C.F.R. § 214.2(h)(4)(iii)(E)
The hiring department must email the following items to ISSS as soon as the department notifies the employee of termination:
- Copy of the check that covers return transportation fees
- Copy of the research documenting how you arrived at the cost of a one-way return ticket to the employee's home country
- Signed statement from H-1B employee indicating that s/he received the check from the department
The employee should depart the United States on the final day of employment with the sponsoring employer, unless he or she has secured the H-1B sponsorship of another employer or otherwise changed immigration status as there is no grace period for H-1B Temporary Workers.
Effect of termination on the alien's H-1B status
One condition of maintaining H-1B status is that the employee continues in the employment relationship with the employer, as described in the H-1B petition. Technically, then, if the employment relationship terminates, the H-1B nonimmigrant will "fall out of status" and can be removed from the United States. Although USCIS has the authority to accept and approve applications for extension of stay or change of status even in such circumstances, that authority is highly discretionary, and is exercised only on a case-by-case basis.
Does receipt of severance pay and benefits preserve H-1B status after termination of employment?
In an undated, 1999 letter, Thomas W. Simmons, Chief of the Business and Trade Branch of the Legacy INS, stated that H-1B workers who are terminated, but receiving severance benefits for a period of time beyond their termination date, are not considered to be maintaining H-1B status and must either depart the United States upon their termination or seek another immigration status for which they may be eligible. Letter from Tom Simmons, I.N.S., to Harry Joe, Esq., reported in 76 Interpreter Releases, 386-387 (March 8, 1999)
Strikes and work stoppages
Employers are required to notify the Department of Labor (DOL) should any strike or lockout occur in an occupation for which an H-1B worker is sponsored. DOL must be notified in writing of the strike or lockout within three days of its occurrence. 8 C.F.R. § 214.2(h)(17)
Post Termination Issues:
Once ISSS is notified that an employee is no longer employed at the University, ISSS will withdraw the LCA and the I-129 Petition associated with the employee.
*** EMPLOYERS BEWARE!***
Employer found liable for three (3) years of back wages where employee never worked for employer
a single day under H-1 B, where the employee worked for another employer under H-1 B at a higher
wage, and where the employee spent approximately two of the three years in Indonesia unavailable
to employer (Limanseto v. Ganze OALJ Cas No.: 2011-LCA-00005). The ALJ ordered that the
employer MUST prove a bona fide termination to end its federal liability under the Immigration and Nationality Act and the Secretary of Labor's labor condition application regulations. Bona fide termination of an H-1 B worker requires the employer to: 1. give notice to the worker of their termination pursuant to State and Federal laws 2. give notice of such termination to Immigration and Customs Enforcement and request cancellation of Form 1-129 and 3. payment for worker's transportation to their home country.