Human Resource (HR)
Category: General HR
We often receive calls from Human Resource Managers asking us what they need to do in order to legally employ a foreign national. We advise them as to whether they can sponsor the foreign national for a temporary working visa. On the other hand we do not often receive calls from HR Managers asking us what they need to do after terminating the employment of a foreign national whom they sponsored for an employment visa, or after receiving a resignation notice from the foreign national.
This is very important question, and one that should be answered by an Immigration Attorney, preferably before the situation arises. The following is an overview of termination/resignation procedures when the employer has sponsored the employee for a visa. Since most companies petition a foreign national under the H-1B program, we will focus our discussion on the obligations of an H-1B employer after the termination of the H-1B worker.
When terminating an H-1B worker’s employment prior to the expiration of his or her status, the employer is required to cover the reasonable cost of transportation to the employee’s home country. The employer is not obligated to pay for the worker’s moving expenses beyond the return flight (or bus) fare. To fulfill this obligation, the employer could arrange to purchase the employee’s return ticket or provide the worker with an amount equivalent to the reasonable cost of the return ticket. If the employer chooses the second option, they should obtain for their records a written release from the employee confirming receipt of the amount.
However, the employer’s obligation to pay for the reasonable cost of return transportation seldom is required. This is because most H-1B workers decide to remain in the United States. In such cases, the employer need not pay or reimburse for the return flight in the indefinite future.
Since a termination is considered a material change to the terms and conditions of the H-1B worker’s employment, the employer must also immediately notify the USCIS of the end of the worker’s employment. The notification should be sent in writing to the USCIS service center that approved the H-1B Petition.
Although the H-1B employer is under no obligation to withdraw the Labor Condition Application (LCA) associated with the employee’s H-1B Petition, it is in the employer’s best interest to submit a withdrawal of the LCA. This will protect the employer from wage liabilities.
To stay up-to-date of their obligations under the H-1B program, it is important that the employer inform their Immigration Attorney of any material changes to the terms and conditions of the worker’s employment, including of course, terminations, lay-offs, or resignations.
Carl Shusterman is the managing attorney of Law Offices of Carl Shusterman based in Los Angeles, CA. He has specialized in immigration law for over 30 years and his six-attorney law firm represents clients in all 50 states. Mr. Shusterman is a 1973 graduate of the UCLA School of Law. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered private practice. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals in a number of different circuits and the Supreme Court of the United States.
Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's National Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He has served as a member of the Immigration and Nationality Law Advisory Commission for the State Bar.
He has been named as one of Best Attorneys in America and as a SuperLawyer for many years. He is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee on Immigration in Washington, D.C. His website, www.shusterman.com, receives over 1,000,000 hits each week, and his free, e-mail newsletter has overධ,000 subscribers in more than 150 countries.
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