End of Employment Issues

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.

Termination of H-1B Employees

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 the H-1B sponsorship of another employer or otherwise changed immigration status as there is no grace period for H-1B Temporary Workers.

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 pay 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)

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.

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.

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 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)

Post-termination issues

DHS regulations state that an employer must notify USCIS "of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section." One such change in the terms and conditions of employment is the termination of the employee's employment. When an employee ceases employment (either voluntarily or by being fired or otherwise let go), DHS regulations state that "the petitioner shall send a letter explaining the change(s) to the director who approved the petition." 8 C.F.R. § 214.2(h)(11)(i)(A)

Although DOL regulations do not specifically require an employer to withdraw an LCA when employment is terminated, as long as the LCA remains valid the employer may be liable for complying with its terms and conditions, and remains subject to DOL LCA investigations, so it too should generally be withdrawn. 20 C.F.R. § 655.750(b)(2)