End of Employment Grace Period:
Please click here for information on Grace Periods following cessation of employment.
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. There is a discretionary 60 day grace period, but employee should be aware that this grace period is not automatic.
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)
- Department notifies ISSS that an individual’s employment has been terminated
- ISSS withdraws the LCA after the final date of employment
- ISSS sends a withdrawal request to USCIS via UPS
- ISSS provides the department with an average cost of return air fare to the employee's home country that must be paid to the H-1B
- ISSS creates a "Return Transportation" Letter and provides a copy of it to the Department
- Department requests check from Accounts Payable using the "Return Transportation" letter as documentation for Accounts Payable (the only signature required for the letter at this point is the signature of the Department Administrator)
- When we receive the check from Accounts Payable, ISSS mails the Return Transportation letter with the check to the employee via UPS
- USCIS will send a Notice to ISSS approving our Withdrawal of the H-1B Petition Request
- Hopefully employee will sign the Acknowledgement and Declaration and email it to ISSS and the Department Administrator
*** 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.
http://documents.jdsupra.com/ecf9f2b3-908b-4745-b855-0e9b58fc7dab.pdf
If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer is responsible for paying 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 CFR 214.2(h)(4)(iii)(E)
(E) Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission pursuant to section 214(c)(5) of the Act. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term "abroad" refers to the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.
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. 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.
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)
Contact Sharon Loughran at 1-3805 or sharonl@temple.edu with any questions or concerns that you may have.