So let’s walk through the steps to help reduce the risk of an improper termination which could lead to unexpected surprises down the road for a company including back wage liability.

Three Important Actions

There are three important steps to keep in mind when ensuring that you properly terminate an H-1B employee:

1. Express Termination: As you would normally do you need to expressly terminate the employment relationship with the H-1B non immigrant.
2. Notify USCIS: You must also notify the immigration service of the termination so that the sponsorship can be withdrawn.
3. Return Transportation: Something that is often overlooked is to also provide the H-1B employee with the option to obtain reimbursement for the reasonable cost of return transportation back to their last country a foreign residence. Note that a company is not obligated to pay for any dependents and also that the return transportation that must be provided need only be economy class transportation. Also, if an H-1B status holder finds another employer, changes visa status or decides to remain in the U.S., an employer is not obligated to pay this cost. So many companies will include a time period in the termination notice. Normally 60 days or so makes sense to be notified by the employee via reimbursement request or otherwise.

Now all three of these items must be completed in order to cut off back pay liability, which is often the biggest concern in these matters.

Best Practice

The best practice here is to document all of the above to be able to clearly show that each element was satisfied and that notice was provided to the terminated employee in case you ever need to evidence this.

Additionally it is also a good practice to provide some notice to the employee regarding how the termination will impact their current immigration status. For example, noting in writing along with the other three required elements discussed above that the employee has a 60 day grace period within which to find a new employer change visa status, or leave the U.S. This is a very difficult situation for employees of course, so the more information that can be provided the better on many fronts. Some companies will even set up an exit interview of sorts with an immigration attorney on the topic of helping employees who are being terminated.

It might also be worth considering helping employees even more during this time by making them aware of great initiatives such as Next Act, created by Bridge.legal in partnership with Upwardly Global, Unshackled Ventures, and others. I encourage you to check it out.

#talent-management #talent-acquisition #immigration #mobility #hr