TERMINATION OF EMPLOYMENT CONTRACTS OF H-1B WORKERS

Upon the termination of an H-1B employee’s services, the employer’s obligation under the Immigration and Nationality Act (INA) of 1952 (hereinafter referred to as the Act) are, that the employer shall be liable for the reasonable cost of transportation of the alien abroad, if the H-1B worker is dismissed before the end of his authorized admission. It may be noted that a voluntary termination by the employee would not amount to a dismissal under the Act. If the employer refuses to comply with this regulation, the employee must advise the concerned service center and this complaint will be retained in the file.

It may be noted that the Immigration and Naturalization Service (INS) will not play any active role in enforcing this right and nor is there any penalty provision against employers who may refuse to comply with this legal obligation. The INS has viewed this provision as a private contractual issue between the parties. It is also unlikely that a complaint such as this, though recorded on the files, would be a ground for rejection for any future petitions that the employer may file. Hence the only recourse the employee would have, would be to file a civil suit which would require the employer to pay for the cost of his or her return transportation.

Also unclear from the statute is what would constitute ‘reasonable cost of return transportation’. Without any real guidance from the INS, a plain reading of the law would suggest that such costs would include a return air or ground ticket to the aliens last place of residence but would probably not include transportation for the rest of his dependent family or for any of his personal property.

In many cases, though dismissed, the alien continues to remain in the U.S. in search of another job offer. In the present day economic scenario this appears to be happening all too commonly. The INS policies on how long one may legally stay unemployed in the U.S. with an approved H-1B are vague. The INS is viewing each application on a case-by-case basis and if the gap between the termination of the previous employment and the finding of a new job is fairly brief, the INS is likely to approve the new petition and extend the status of the alien. In any case, the employer who has terminated the contract with its H-1B worker is obliged to offer to pay the return transportation costs even if the alien makes it known that he does not intend to immediately depart from the U.S.

Since the Department of Labor (DOL) regulations prohibit an employer from putting an H-1B worker on ‘bench status’, to avoid any potential benching claim in the event that the employee does not leave the U.S. even after his services have been terminated, it is best for the employer to offer to pay for reasonable transportation home and obtain the employees acknowledgement or waiver of such offer.

In addition to this, the employer is also obliged by law to submit immediate written notification of any change in the terms of employment, and this would obviously also mean a termination of the H-1B contract. Again, there is no penalty provision for non-compliance with this provision. However it is advisable for the employer to comply with this regulation and notify the service in writing upon the termination of an H-1B employee’s contract. Once again such a letter would constitute a bona fide termination of the employment relationship, as is required under the DOL’s ‘no-benching’ requirement. Once this letter has been submitted, the employer is no longer held responsible for any acts of omission or commission by the alien.

The submission of such a letter to the INS by the employer might result in serious consequences for the alien who wishes to stay on in the U.S. until such time as he finds another job. On receipt of such a letter the INS could issue either a notice of intent to revoke or immediately issue a revocation notice. At the same time The American Competitiveness in the Twenty-First Century Act, (AC 21) created the concept of H-1 portability allowing for free and easy transfers of employees from job to job. There would thus appear to be a conflict, as the immediate revocation of a petition by the INS, would be inconsistent with the free portability provisions of AC 21. Ideally, the employee should be given a reasonable period of time to file a non-frivolous application with another employer and so remain in valid legal status. As stated above, there is no policy guidance from the INS on what would constitute a reasonable period of time from the employee’s point of view and in the meantime it is mandatory for the employer to notify the service of the termination, as soon as it occurs.