Terminating out-of-status employees

The termination of employees who have H-1B visas is permitted, but it requires employers to take additional steps.

The employer should write a certified letter to USCIS providing the date of termination and asking to revoke the H-1B petition. In addition to notifying USCIS, the employer should inform the anti-fraud section of the U.S. consulate in which the visa stamp was originally issued that the H-1B petition has been withdrawn; and notify the U.S. Department of Labor that the employer is withdrawing the LCA. The employer must ensure that the H-1B worker has been paid in accordance with the terms of the LCA.

The employer also is liable for reasonable costs of the return transportation of the foreign national abroad, meaning the employer must pay for the foreign worker’s travel to his or her last place of residence. This obligation does not extend to family or such things as furniture or other belongings.

The employer must have evidence of a proper or bona fide termination in a clear and unequivocal notification in writing to the foreign national worker that the relationship has been terminated, as well as in the information about the termination provided to USCIS. Otherwise, the U.S. Department of Labor may determine the employee was put on nonproductive status and the employer will be liable for wages until the termination is bona fide.

The employer should keep documentation of all the steps it has taken. If the foreign worker refuses the ticket or cash to pay for a ticket, the employer should have the foreign worker sign a statement with independent witnesses if possible, stating clearly that he or she declines acceptance of the ticket or cash. The offer and the ticket should be open for a certain time to be used by the foreign national employee. I suggest 15- 30 days might be appropriate. It is best to use a travel agent they can trust and order a one-way nonrefundable ticket for the employee to be used by a certain date. That way, if an employee does not use the ticket, the employer is not out any money, but has fulfilled his requirement under immigration law with respect to transportation home. The employer cannot force an employee to accept the ticket but can prove it complied by offering it.

Before terminating an employee in H-1B status, the employer must consider whether oral and/or written promises were made in terms of future extensions, contractual obligations. Other important circumstances from a labor and employment standpoint include whether the worker is pursuing a green card, strikes, layoffs and other labor/union issues. When terminating an H-1B employee, there is the risk of being sued under state contract law. Generally speaking, the employer’s submission of a petition to USCIS seeking permission to employ the beneficiary for a specified term does not constitute an implied contract for a fixed term. However, if the employer’s offer letter to the beneficiary—or other writing—creates an inference that the employer is guaranteeing employment for the length of stay approved by USCIS, then the H-1B worker may sue the employer for breach of contract under applicable state law.

Employment termination for immigrants often has dire consequences for foreign national employees residing in the US or in the green card process, so there are plenty of incentives for legal claims. The employer should carefully drafting the offer letters and immigration benefit policies to reduce liability and potential employee lawsuits. Employers should be crystal clear in making sure that at-will policies specifically cover H-1B employees, and in outlining the conditions for and limitations on immigration sponsorship.

To avoid committing fraud, employers should not generate fake paychecks post-dating the termination date in order to make it appear that the employee remained in H-1B status pending the filing of a new petition by a successor employer. Frequently, terminated H-1B workers request or demand evidence of continued employment under threat of filing a complaint with the Wage and Hour Division for violating the LCA regulations or the taking of some other legal action. This should not be an excuse for violating the law and the penalties are likely to be much greater than any liability you had for the employee complaint even if it was true. In many cases the employer has fully complied with its legal duties and has no reason to fear a complaint (other than the mere hassle of dealing with it).