A recent lawsuit emphasized the importance of notifying USCIS right away whenever an H-1B employee is terminated. In a recent case, a U.S. Department of Labor judge held that an H-1B visa holder terminated by their employer is due back pay where the employee was notified that they were terminated, but the employer did not immediately revoke the H-1B petition with USCIS. Under the relevant USCIS and DOL regulations, if you do not notify USCIS in writing about the termination of the H-1B worker and request cancellation of the H-1B petition, you remain liable for the LCA wages until the H-1B is revoked. In other words, termination of an H-1B employee is not effective until the H-1B is revoked by USCIS, even if the employee has ceased working.

As a reminder, whenever an employer terminates an H-1B employee, there are several obligations that must be met: (1) the employee must be notified, preferably in writing; (2) the employer must offer to pay for the return flight/transportation to the employee’s home country, and (3) USCIS must be notified in writing of the termination. Failure to produce records that each of these obligations has been met can result in serious consequences with the DOL, including backpay, fines, and other penalties. At ILBSG, we recommend using a courier service to deliver the H-1B cancellation request to USCIS with a scanned copy of the mailed request kept on record. USCIS is sometimes delayed in issuing a withdrawal confirmation notice, meaning that the burden of proof will be on the employer to show the withdrawal/cancellation was requested. Absent proof the request was sent and delivered to USCIS (through a tracking number), an employer can be found liable for the LCA wages.

In the recent lawsuit, the terminated H-1B holder argued they were due pay for the period between termination of their employment and USCIS notification. A U.S. Department of Labor judge agreed and ordered the H-1B employer to pay their former H-1B employee, at minimum, the local prevailing wage or the actual wage paid to the employee, for the time period between terminating the employee and notifying USCIS. The employer is required to pay the H-1B employee until a bona fide termination of the worker is complete through USCIS. There are very limited exceptions for unpaid time while on H-1B (including approved medical leave, etc.) and H-1B employers should consult their immigration attorney if there is ever any doubt about the H1B wage requirements.

In the lawsuit, the H-1B employer argued they were not required to continue paying the individual as the employee stopped working for the organization and returned to their home country. However, the Judge found the individual left solely because they were terminated and unable to find another position to remain in the U.S. As such, the circumstance was out of the individual’s control and the employer must pay as a result.

If you have questions about the termination of an H-1B worker or any other U.S. immigration related issue, please contact us at ILBSG. Clients work directly with our team of experienced attorneys to ensure they get the right advice for their individual situations. We support our company clients throughout the employment-based visa process to ensure they remain in compliance.

h-1b H-1B Termination