What are an employer’s legal obligations when terminating an H-1B employee?
Under 20 C.F.R. § 655.731(c)(7)(ii), employers must complete three key steps to ensure a bona fide termination:
- Clearly notify the employee of the termination
- Offer to pay for the employee’s return transportation to their home country
- Notify USCIS in writing that the employment relationship has ended
When can an employer stop paying the required wage to an H-1B employee?
An employer is released from the obligation to pay the required wage only after executing a “bona fide termination” of the employment relationship. Without properly completing all three steps above, the employer may remain liable for back wages.
Are there exceptions to the wage payment requirement?
- After a properly executed bona fide termination
- When an H-1B employee experiences a period of non-productive status due to conditions unrelated to employment at their voluntary request (e.g., touring the U.S., caring for an ill relative) or when they are unable to work
What happens if an H-1B employee disappears or fails to report to work?
The regulations do not clearly address situations where a foreign national disappears or fails to report to work. However, case law has established some guidance for these scenarios.
The regulations do not clearly address situations where a foreign national How did the Amtel Group v.
This Administrative Review Board decision established the three-part test for a bona fide termination that employers must follow to avoid liability: or fails to report to work. However, case law has established some guidance for these scenarios.
- Employee notification
- Return transportation offer
- USCIS notification in writing
Did the Batyrbekov v. Barclays Capital case change employer liability?
Yes, this significant ARB decision (Case No. 13-013) expanded employer protections by holding that employers are not liable for back wages when:
- The employee successfully transfers H-1B status to a new employer, OR
- The termination notice to the employee was “clear and unequivocal,” even if the full Amtel requirements were not met.
How does the Gupta v. Compunnel case affect non-productivity claims?
This case established a two-part test for non-productivity cases:
- Employer must first show that the employee had a job assignment.
- Employer must then show that the employee did not avail themselves to that assignment.
What’s the recommended process for employers to follow when terminating an H-1B employee?
- Provide written termination notice to the employee, clearly stating the termination date
- Offer return transportation to the employee’s home country in writing
- Submit a written notification to USCIS requesting revocation of the H-1B petition
- Maintain documentation of all three steps in case of any future disputes
- Consider consulting with immigration counsel to ensure compliance with all requirements
What are the potential consequences of failing to execute a proper termination?
Employers who fail to complete all steps of a bona fide termination may be liable for back wages until:
- The H-1B petition expires
- The employee obtains H-1B status with another employer
- A proper termination is completed
- The employee leaves the United States
Should employers be concerned about H-1B employees who transfer to new employers?
According to Batyrbekov v. Barclays Capital, when an H-1B employee transfers to a new employer, the original employer’s liability for wages ends, provided they gave clear and unequivocal notice of termination to the employee.
Need Expert Guidance on H-1B Terminations?
Navigating H-1B termination requirements doesn’t have to be complicated. At Immigration Fleet, we provide comprehensive support to ensure your compliance with all regulatory requirements while protecting your business interests.