This update explores the central issues involved in the termination of H-1B employees, including an H-1B layoff. Terminations, whether for performance or for lack of work, present special challenges to H-1B employers and to the terminated H-1B worker. These challenges, including employer obligations to terminated or laid off H-1B employees, are discussed below.

This update explores the central issues involved in the termination of H-1B employees, including an H-1B layoff. Terminations, whether for performance or for lack of work, present special challenges to H-1B employers and to the terminated H-1B worker. These challenges, including employer obligations to terminated or laid-off H-1B employees, are discussed below.

H-1B Employer Obligations

The three main components of a "bona fide" termination of H-1B employees under the rules governing H-1B employment include 1) notice to the H-1B employee, 2) notice to United States Citizenship and Immigration Services ("USCIS") that the H-1B employment has been terminated, and 3) the employer's payment to the H-1B employee of reasonable costs of return transportation abroad. Employers should maintain a clear record of each element met.

As you will see from the discussion below, USCIS does not have an enforcement mechanism for the requirements, but the Department of Labor (DOL) has imposed financial obligations for back wages and return transportation in certain cases brought before it regarding whether the elements of a bona fide...

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