Q. We are sponsoring an immigrant worker on an H-1B visa. Because of performance issues, we would like to terminate his employment. Can we do this?
A. Yes. However, there are a number of issues to be aware of. Employers must comply with certain requirements regarding the terms and conditions of employment of H-1B workers.
In particular, under the Labor Condition Application filed with the U.S. Department of Labor as part of the H-1B petition, the employer agrees to pay the H-1B employee a wage equal to or greater than the prevailing wage for the occupation within the geographic area of intended employment.
Employers must pay that wage for the duration of the approved H-1B period unless there is a “bona fide termination” of the H-1B employee’s employment. A bona fide termination, requires: (1) notification to the H-1B employee; (2) notification to the U.S. Citizenship and Immigration Services (USCIS) of the termination; and (3) an offer to pay the cost of the employee’s return transportation home.
The termination notice to the H-1B employee should be in writing and should specify the effective date of the termination. The notification to USCIS can be in the form of a short letter explaining that the H-1B employee is no longer employed with the employer. The Immigration and Nationality Act of 1952 requires that the employer pay the reasonable costs of return transportation if an H-1B employee is involuntarily terminated before the end of the authorized period of admission. This requirement is limited to reasonable costs of air or ground transportation to return the H-1B employee to his or her foreign residence. It does not require the employer to pay the cost of return transportation for the H-1B employee’s dependent family members.
Those are the general rules. Individual may present unique circumstances that require a more detailed analysis. Therefore, you should consult with an immigration attorney for more specific advice.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Tell employee the complete reason for firing.
- Frequent firings may indicate personality conflicts, not bias
- Remind supervisors to err on the side of caution when employee claims medical emergency
- Give benefit of doubt to panicked workers who take sudden FMLA leave