regd H1-B Layoff and travelling back to India


infowanted

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Hello All,

I have only 3 months of H1-B Visa left for completion of 6 years. I had also recently completed a

Project. I was told by someone in my Company that I may be asked to leave tomorrow i.e., 19th Jan as getting a short project is difficult. They give the Payslip on 20th and 5th of every month. I am not sure if I can get another Payslip on 5th which I need to clarify with my Company. If I understand correctly a H1-B person is legal only till the date they receive the Payslip. If I get the last payslip on 20th, than would my stay after 20th become illegal. I know there is another option of some tourist visa I guess which could be applied just to buy some more time and complete the closing activities. Do you think if I leave USA on 30th Jan, than the 10 days would that be considered as illegal or do I need to apply for some Tourist Visa.

Can you please clarify.

Regards,

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Most of the employment contracts will have "2 weeks termination notice clause". Remember, legally your employer needs to make arrangement for home country. Please go through following information for termiated H1B employees, some of that might be useful.

PART III: TERMINATED H-1B EMPLOYEES AND THE EMPLOYER’S OBLIGATIONS

Introduction

As discussed above, while an employer must notify USCIS of material changes in employment for its H-

1B employee by filing an amended H-1B petition, [40: 8 CFR §214.2(h)(11)(i)(A).]

an employer similarly must inform USCIS in writing that an H-1B employee no longer works for it

through a letter explaining the change, so that USCIS has an opportunity to revoke the underlying H-1B

petition. [41: 8 CFR §214.2(h)(11)(iii)(A)(1).]

The significance of this notification to USCIS is much more than administrative thoroughness on the

part of the employer. Instead, notification to USCIS is fundamental to ending an H-1B employer’s

obligations, pursuant to the LCA and immigration and DOL regulations. Specifically and most

importantly, notification is critical to ending an employer’s duty to pay the employee his or her wages as

provided in the LCA.

In September 2006, in Amtel Group of Florida v. Yongmahapakorn, the DOL Administrative Review

Board (ARB) underscored the importance of notifying USCIS of an H-1B employee’s termination. [42:

Amtel Group of Florida v. Yongmahapakorn, ARB Case No. 04-087, ALJ Case No. 2004-LCA-006

(Sept. 29, 2006).]

Where there was previously some flexibility on what constituted "bona fide termination" of an H-1B

employee, the ARB in Amtel created a bright-line rule by holding that an H-1B employer did not

effectuate a bona fide termination unless it provided formal notice to USCIS and provided payment for

return transportation home. [43: See D. Horne, "Requests for Evidence: Is Termination the End of it

All?," 11 Bender’s Immigr. Bull. (Dec. 15, 2006).]

Background

Bona Fide Termination

An employer can be found to have violated the INA for employment-related reasons when it fails to pay

full-time wages of an H-1B employee in "non-productive status" based on lack of work or on the

nonimmigrant’s lack of a permit or license. [44: INA §212(n)(2)©(vii)(I).]

However, DOL regulations relieve the H-1B employer of this obligation to compensate the H-1B

employee where the employer effectuates a "bona fide termination" of employment. [45: 20 CFR

Weighing When to Amend or Terminate H-1B Petitions Page 10 of 14

§655.731©(7)(ii); see also Administrator, Wage and Hour Division v. Pegasus Consulting Group, Inc.,

ALJ Case No. 2001-LCA-00029 (Nov. 13, 2002). ] The preamble to this DOL provision indicates that

"bona fide termination" occurs when the H-1B employer notifies USCIS of the termination, when the H-

1B petition has been canceled, and when the employer provides the terminated H-1B employee payment

for return transportation back to his or her home country as required by the relevant immigration H-1B

regulations. [46: 65 Fed. Reg. 80171 (Dec. 20, 2000) (interim final rule).]

Notification to USCIS

The H-1B regulations require an employer to "immediately" notify USCIS of any changes in the terms

and conditions of H-1B employment that may affect an employee’s eligibility for H-1B status. [47: 8

CFR §214.2(h)(11). ]

Termination of an individual’s H-1B employment clearly falls within the purview of this regulation.

Accordingly, if the employer no longer employs the H-1B employee, the employer must send a letter to

USCIS explaining the change in circumstance. [48: 8 CFR §214.2(h)(11)(i)(A).] This notice triggers

USCIS’s ability to revoke the H-1B petition, thereby invalidating the employee’s H-1B status. [49: 8

CFR §214.2(h)(11)(iii)(A)(1).] As noted above, the employer must satisfy this regulatory requirement

regarding notification of termination for the DOL to consider it a bona fide termination. The ARB has

further clarified that the bona fide termination of employment can occur on the date that the employer

notifies USCIS of the employment termination, not the date USCIS actually revokes the employee’s H-

1B visa. [50: See Neeraja Rajan v. International Business Solutions, Ltd., ARB No. 03-104 (Aug. 31,

2004).]

Payment for Return Transportation

If an employer terminates H-1B employment before the end of the H-1B employee’s period of

authorized stay, the employer is liable to the employee for "reasonable costs" of return transportation to

his or her last country of residence. [51: 8 CFR §214.2(h)(4)(iii)(E).]

The employer is not obligated expressly by the statute to actually pay for the employee’s travel home,

but the H-1B employer must offer to pay for such transportation costs. While the statute does not define

the scope of "reasonable costs of return transportation," legacy INS advisory letters suggest that an

employer’s liability does not extend to the cost of relocating family members or property. Although it is

clear that there is no penalty provision in the immigration regulations for employers violating this

statutory requirement, and also that it is unlikely that USCIS would deny an employer’s subsequent H-

1B petitions because of such a violation, [52: See Y. Robertson, "Avoiding the Abyss: H-1B Strategies

When Facing Reductions in Force," 6 Bender’s Immigr. Bull. (Dec. 15, 2001); S. Mailman and S. Yale-

Loehr, "When H-1B Workers Lose Their Jobs," 6 Bender’s Immigr. Bull. (Sept. 1, 2001).] payment for

return transportation home is essential to evidencing bona fide termination of employment, according to

DOL.

Previous ARB Decision

When discussing the Amtel decision, it is important to consider also a 2004 ARB decision, U.S. DOL v.

Ken Technologies, Inc. [53: ARB Case No. 03-140, ALJ Case No. 2003-LCA-00015 (Sept. 30, 2004).]

In Ken Technologies, Inc., the ARB held that "whether a termination is bona fide does not turn solely on

whether the employer notified INS. The employer should be permitted to present other evidence

concerning whether it terminated the H-1B employee. Filing such notification with INS constitutes

additional, not conclusive evidence of termination." [54: In this case, the ARB found that where there

Weighing When to Amend or Terminate H-1B Petitions Page 11 of 14

was no evidence of notification to USCIS, a termination letter, signed affidavit, and internal company

records were also insufficient evidence to demonstrate bona fide termination.]

Notably, the Amtel decision does not address the holding in Ken Technologies or directly overrule it.

Instead, the ARB creates the evidentiary standard that in order for an employer to effect a bona fide

termination of employment of an H-1B employee--thereby ceasing its obligation to pay the employee--

the employer must provide notice to USCIS of the terminated relationship and pay the H-1B employee

the costs of transportation home. It is important to bear in mind that the Amtel standard is possibly

vulnerable to future challenges based on Ken Technologies.

The Amtel Case

Facts

Amtel, a Florida business that operated a hotel, sponsored an H-1B employee from Thailand to work as

its internal auditor. After the company approved a 14-day leave of absence for the H-1B employee to

travel back to Thailand and following her return to work, Amtel informed the employee that it had

terminated her employment. Proceedings against Amtel began when the H-1B employee filed a

complaint with DOL’s Wage and Hour Division alleging that Amtel had wrongfully terminated her

employment; had violated the INA by failing to pay her the prevailing wage for the actual job she

performed; and owed her for various expenses, including costs for her return transportation to Thailand

upon the termination.

Discussion

When the ARB reviewed the case, it focused its decision on three central issues: (1) whether Amtel

owed the H-1B employee the prevailing wage identified on the LCA or for another occupation in which

the employee allegedly worked; (2) whether Amtel effectuated bona fide termination of the H-1B

employee’s employment; and (3) whether Amtel owed the H-1B employee for unreimbursed workrelated

expenses. For purposes of the instant discussion, this section will discuss the ARB’s analysis of

the second issue.

The ARB found that Amtel did not effect a bona fide termination of its employment relationship with

the H-1B employee pursuant to DOL regulations. Specifically, the ARB cited the regulations at 20

C.F.R. §655.731©(7)(ii):

Payment need not be made if there has been a bona fide termination of the employment relationship.

INS regulations require that the employer to notify the INS that the employment relationship has been

terminated so that the petition is canceled (8 C.F.R. 214.2(h)(11)), and require the employer to provide

the employee with payment for transportation home under certain circumstances (8 C.F.R. 214.2(h)(4)

(iii)(E)).

The ARB stressed that an employer does not need a valid basis or good cause to establish bona fide

termination under the H-1B provisions. The ARB found that there was no question according to the

evidence that the employee’s job had been terminated by Amtel and that notice had been provided to the

employee. Instead, the ARB narrowed the issue by evaluating whether Amtel effected a bona fide

termination under the DOL’s H-1B provisions at 20 CFR §655.731©(7)(ii), thereby eliminating

Amtel’s liability for back wages. The ARB stated that this provision, when read in conjunction with the

preamble to the rule, [55: See 65 Fed. Reg. 80171 (Dec. 20, 2000) (interim final rule).]

lent to the finding that in order to establish bona fide termination, the employer must notify USCIS that

Weighing When to Amend or Terminate H-1B Petitions Page 12 of 14

it had terminated the employment of its H-1B employee and provided the employee with payment for

transportation home.

Finding that there was no evidence in the record of notification to USCIS or payment for return

transportation, the ARB held that Amtel did not effectuate a bona fide termination of employment of its

H-1B employee, and thus, owed the employee the prevailing wage for the duration of her H-1B petition

and additional compound interest on wages. Because Amtel was required to pay the prevailing wage for

the employee’s complete, authorized period of H-1B stay, Amtel did not have to pay for the employee’s

transportation home. However, the ARB held, in cases where an employer terminates the employment

relationship before the H-1B expires, the employer must also offer return transportation in order to effect

bona fide termination. The ARB’s decision weighed heavily against Amtel: Amtel owed over $50,000

of back pay and interest to its terminated H-1B employee for the period between termination of

employment and the expiration of the employee’s H-1B status.

Implications for Employers

The Amtel decision serves as an important reminder to H-1B employers of their serious obligation to pay

the required wages to their H-1B employees, and that this obligation does not cease until there is a bona

fide termination of the H-1B employment. Amtel points to several important lessons for avoiding

liability for back wages and other penalties, while raising other key considerations:

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Hi,

Thanks for the replies. My last date is given as Feb 3, 2012 - Friday and I receive my last Payslip on that day. Can I travel back to India on Saturday or Sunday being weekend and holidays ( Feb 4 or Feb 5 ) or do I need to travel back by Feb 3. Can you please confirm.

I was also answered by an attorney in a brief reply as I can leave USA a few days later. I cannot communicate more clearly with them to get the exact number of days. Do u think if I leave either on Feb 4 or Feb 5 that can be a cause of problem in future.

Thanks,

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