Firing an Employee With an H1B Visa
Termination of an H1B employee has some consequences that employers should be aware of. We take a look at issues related to firing an employee with an H1B visa.
With businesses increasingly relying on foreign workers to fill all kinds of roles, the issue of immigration visas is getting much more attention than it used to receive from the business community.
There are several visa mechanisms employers can leverage to qualify international workers for employment in the U.S., including the popular H1B visa.
H1B visas are non-immigration visas that allow workers in specialized occupations to reside in the U.S. for a limited time period. To qualify for a H1B visa, the individual must meet specific program criteria and be sponsored by an American employer. If the individual's relationship with the employer ends, so does his eligibility to reside in the U.S. under an H1B visa.
It's clear to see how firing an H1B employee can have dramatic ramifications for the individual being terminated. But many employers don't realize that the termination of an H1B visa has consequences for both the employee and the employer. Although it's not impossible to terminate a qualified H1B visa worker, you'll need to understand the outcomes of your decision before you start passing out pink slips.
When an employer terminates an H1B employee, the employer is required to foot the bill for the employee's transportation back to his home country. This can be done through either a cash payment or the direct purchase of a plane ticket. Employers are not responsible for the costs associated with transporting the employee's family members or personal possessions back to his country of origin.
Employers are required to notify the Immigration & Naturalization Service (INS) immediately after terminating an H1B employee. INS notification can be achieved by sending a letter to the same INS service center that approved the individual's H1B petition.
If the employer has terminated the employee due to lack of work, the employer must continue to compensate the worker. But if the termination is due to non-performance or other legitimate causes, the employer can cease compensation after the termination letter has been sent to INS.
According to the letter of the law, H1B visas expire at the moment of termination. Individuals who remain in the U.S. after their H1B has expired are in violation of legal statutes and should leave the country as soon as possible. In practice, terminated H1B employees may not be prosecuted if they leave the country within 30 days.
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