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Can we terminate an H-1B immigrant?

by on
in Firing,Human Resources

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 terminations may present unique circumstances that require a more detailed analysis. Therefore, you should consult with an immigration attorney for more specific advice.

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