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DOL Addresses (Again) the Termination of H-1 Employees

One of the most common questions from employers is:  Is there something we need to do when we terminate an H-1 employee?  The Immigration Service’s regulations only require one thing:  written notice to USCIS regarding the date of termination.

Unfortunately, the Department of Labor (DOL) takes a much more complicated approach to this issue. DOL requires not only the written notice to USCIS but also the “bona fide” termination of the employment.  In this context, “bona fide” termination is a term of art and has a very distinct meaning.  To DOL, the obligation of the employer to compensate the H-1 ex-employee until the “bona fide” termination takes full effect. So, what does a “bona fide” termination require?

We know the first step in this termination process is the written notice to CIS.  But DOL also requires an offer for “return transportation” to the ex-employee’s place of residence. This offer to pay for this must be written and provable. It is not enough to simply ask the ex-employee how much a plane ticket will cost and write a check, even with a letter explain what the check is for.  In that situation the employer may well be paying the ex-employee but that does not mean he/she is actually leaving the US. It is best to ask for the date of departure and actually by a ticket for that date. If the ex-employee then decides to remain in the US, the ticket can be refunded and you will have proof of the purchase to satisfy this legal requirement.

There is another wrinkle to this issue that may become important. In some cases, the written notice and/or offer of payment for return transportation may be delayed.  In that situation DOL has ruled that if the ex-employee accepts employment with another US employer, the obligation to continue wage payments ends.  However, in a recent decision, DOL clarified that it is not enough to prove the ex-employee is at this point employed; the ex-employer must also prove the ex-employee has obtained a “change of employer” determination from CIS.  It is easy to see how difficult this might be in reality. First, unless the ex-employee voluntarily gives the ex-employer the change of employer notice, there is no procedure available to obtain it. Second, even if a procedure were to exist it would takes weeks if not months.

The importance of this recent ruling is that the ex-employer should send the written notice of termination to CIS immediately upon termination. And the offer of return transportation (either a written offer signed by the ex-employee or purchasing a ticket) should also happen immediately on termination.  It is not best practice to rely on the ex-employee to obtain new employment in the US because the proof of the change of employer will be almost impossible to obtain. And the obligation to pay compensation continues as that process drags on.

Employers need to make sure they follow these termination steps when an H-1 employee is let go, regardless of the reason. If there are questions, consult with a Board Certified Immigration Attorney.    

David Swaim
David Swaim & Associates, P.C.