How do I terminate an employee with an H1-B visa?

by Michael Haberman on October 29, 2014 · 0 comments


ID-10096061 Image courtesy of Stuart Miles at FreeDigitalPhotosnetH1-B visas are special documents that allow people with special skills to work in the United States. Only 65,000 of these visas are issued annually, thus terminating someone on an H1-B is a big deal.

Requirements to have an H1-B

According to the Department of Homeland Security, USCIS, a worker on an H1-B visa must meet the following:

  • They have to be sponsored by an employer
  • They have to have a bachelor or higher degree
  • The employer requires the degree
  • The work is so specialized and complex it requires the degree
  • The visa holder must be paid the prevailing wage or higher for degree holders in that occupation

Once the worker has the H1-B they can stay in the country for a period of three years, which can be extended another three years. But what happens if they get here and you don’t like them or they don’t like you.

Terminating employment

Not every employee works out and is good enough to want to keep a complete year, let alone the three years. According to Gaebler.comIf the individual’s relationship with the employer ends, so does his eligibility to reside in the U.S. under an H1B visa.” The H1-B is not an immigration visa. Thus this termination could have a major impacts on the employee and on the company.

To terminate an employee the employer must inform the Department of Homeland Security right away, typically by sending a letter to the same service center that approved the visa in the first place. According to the law the visa terminates on the date of the letter. So the employee must leave the country as soon as possible, though generally they are allowed 30 days.

If the termination was due to lack of work, then the employer must compensate the employee for the remainder of the period of the visa. If the termination was due to poor performance or some other legitimate reason then the employer may stop paying after the letter has been sent.

The employer is responsible for paying the cost of transportation back to the employee’s country of origin. However, if the employee brought family with them the employer is not obligated to incur the cost of their transportation. You may however, wish to consider that situation in the totality of the circumstances.

What if they don’t like you?

Not everyone that is going to work for you is going to like your company or the job. What happens when they go and search for another job while employed by you on an H1-B? They are tied to you because you sponsored them. In some situations sponsorships can be transferred to the newly hiring company, but the employee cannot just up and leave you. If they do then you have the obligation to report them to Homeland Security.

Because the 65,000 per year allotment of visas goes quickly you want to make sure you make careful selections of employees on which to expend that visa. A bit of caution may save you and the employee some difficult times.

Image courtesy of Stuart Miles at FreeDigitalPhotos.net


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