When terminating an H-1B employee, employers must be careful to follow strict compliance rules in order to avoid penalties. Those penalties can include payment of back wages, monetary fines and even debarment from the H-1B program.
In order to properly let an H-1B employee go, employers must follow a three-step process known as a “bona fide termination.” These three steps are:
1. Employee notification that employment has ended: It must be clear to the employee that the employment relationship has ended. This means a notice in writing should be presented to the employee and all records of correspondence with the employee should be kept on file. You must be clear that you will also be notifying the U.S. Citizenship and Immigration Services (USCIS) concerning the termination.
2. Notify USCIS in Writing: Under H-1B employment regulations, an employer must notify USCIS any time there is “any material change in the terms and conditions” of H-1B employment. The simple act of sending the notification via U.S. Postal Service certified mail with proof of receipt can protect an employer from significant liability.
3. Offer to pay for the employee’s return transportation: An employer must offer to pay for an employee’s reasonable cost of transportation back to his or her country of last residence. This offer must also be in writing and must include a reasonable deadline for the employee to accept the offer. Remember to keep all documentation concerning the return including a copy of the itinerary and/or ticket along with proof of payment. An employer does not have to pay for the transportation of an H-1B employee’s family or the shipment of the employee’s possessions.
Adhering to these three steps is essential when seeking a bona fide termination of an H-1B employee. It is very important that all documentation concerning the termination be kept in order in case a complaint against an employer is brought for alleged wage violations. The employer has the burden of proof to produce these records.
Remember that the bona fide termination process does not apply if the employee voluntarily resigns or if his/her employment authorization ends. Regardless, accurate records still must be kept in case a compliance complaint rears its ugly head later.
If you have questions or concerns about H-1B compliance it is essential that you contact an experienced immigration law attorney at Lubiner, Schmidt & Palumbo in New Jersey. A consultation with us can help you avoid compliance headaches and can save you money. Call us at (888) 847-2529 or contact us online to make an appointment for a free case evaluation today.