As we have advised in the past, a bona fide termination of an H-1B employee by an employer only occurs when the employer does all of the following: (1) gives notice of termination to the H-1B worker; (2) notifies U.S. Citizenship and Immigration Services (UCSIS) of the termination; (3) withdraws the underlying Department of Labor (DOL) Labor Condition Application; and (4) offers to provide the H-1B worker payment for transportation home. In a case published late last month, the U.S. Department of Labor’s Office of Administrative Law Judges (OALJ) reminded us how important it is for employers to adhere to these steps. The employee in the case, who held H-1B status valid for a three-year period, was fired by his H-1B employer only two months into his authorized three-year stay. The employee subsequently claimed eligibility for back wages covering over two and a half years of time (from his time of firing until his time of departure from the U.S.), arguing that the employer’s failure to notify the immigration authorities of the termination, coupled with its failure to offer to pay return transportation costs, constituted a failure to effect a bona fide termination. OALJ agreed with the employee, and ordered the employer to pay its former H-1B employee nearly $183,000 in back wages, plus interest.
This recent case reminds us that it is absolutely critical to follow the USCIS and DOL bona fide termination requirements following termination of an H-1B employee.