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Myths About H1-B Visas

Fri March 28, 2014 Publications

Employers that are having difficulty attracting qualified employees to fill a specialized occupation will sometimes sponsor foreign workers on H1-B visas. The vast majority of the time, both the employer and the foreign worker are satisfied with this mutually beneficial arrangement. Unfortunately, this arrangement does not always work out and the intersection of labor law and immigration law has given rise to several myths about how a H1-B Visa worker is different than other employees.

Myth 1: An employer can’t fire an H1-B worker

The H1-B worker can be terminated or can resign in the same fashion as other employees. While there are additional considerations, discussed below, there is no requirement for the employer to “park” the employee, or continue to pay him, for the duration of the employee’s visa.

Myth 2: An H1-B worker’s separation from employment is the same as other employee’s

The H1-B worker has been sponsored to be in this country by the employer, and their employment is a condition of their remaining in this country; as such, when the H1-B worker separates from employment whether by termination of resignation, the employer must notify the U.S. Citizenship and Immigration Services. This notification should be made by certified letter to the service center that approved the H1-B petition.

Myth 3: The employer has to pay all the moving costs to return the H1-B worker home

The employer is responsible for offering a plane ticket, or the reasonable costs of physically returning the H1-B worker to his last country of residence, if the H1-B worker is terminated. The employer is not responsible for moving costs, not responsible for relocating family members, and not responsible for any costs if the H1-B worker resigns.

Myth 4: There is no liability for firing an H1-B worker

The Department of Labor has determined that the employer is liable for the full wages of the H1-B worker until the expiration of their visa unless the employer notifies the U.S. Citizenship and Immigration Services to revoke their visa, and, in case of termination, offers the reasonable cost of transportation home for the H1-B worker. There may be additional concerns involving wages.

Myth 5: The H1-B worker has a grace period to seek new employment in the United States

There is no grace period; the H1-B worker is out of status as soon as the employment relationship ends. An employer who has an amicable relationship with the H1-B worker might want to allow the H1-B worker time to find a new petitioning employer, but during that time the employer is liable for the full amount of the H1-B worker’s salary.

H1-B workers can be beneficial to employers, but there are many issues involved when an H1-B worker separates from employment, whether through termination or resignation. Each individual circumstance presents different challenges, and employers should consult with counsel to determine the appropriate course of action.