We have heard a lot recently about the H-1B CAP.  The U.S. Citizenship and Immigration Services (“USCIS”) just completed its lottery to select which H-1B visa applications it will review.  They will soon start to return the applications and fees for those cases that were not selected in the lottery.  Next year, the process will be different and less costly to employers.  Watch for the new instructions to come out later in the year.

The purpose of today’s article is to bring awareness to the necessary steps to assure that if termination of an H-1B employee becomes necessary, it is done correctly, thus eliminating the obligation to pay his or her salary.  A bona fide termination must meet certain criteria in order for an employer’s wage obligation under the Labor Condition Application to cease.

1. The employer must expressly terminate the employment relationship with the H-1B worker.
2. The employer must notify USCIS of the termination, so that the agency can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11).
3. The employer must provide the H-1B worker with an offer for payment of reasonable costs of return transportation (economy class air fare) to his or her last foreign residence under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). There is no obligation to pay the transportation costs for any of the employee’s family members.

These three steps are mandated by the Department of Labor.

If the employee voluntarily terminates his or her employment, then the employer is not obligated to offer return transportation, but must notify USCIS of his or her last date of employment.

It is important to follow all three steps. If the employer explicitly terminates the employment relationship but fails to follow the second and third steps, the employer may still be obligated to pay the required wage even after termination.