The E-3 visa, which is a nonimmigrant visa reserved for nationals of Australia, can be an excellent option both for Australians who want to live and work in the United States, as well as U.S. employers who would benefit from the expertise offered by an Australian worker. Sometimes, unfortunately, it is necessary for an employer to terminate an E-3 worker. In this post we consider what the employer’s obligations are when they terminate an E-3 employee.
As a starting point, it may be helpful to keep in mind that the immigration regulations that apply to E-3 workers largely mirror those that apply to H-1B workers. As a result, it is recommended that employers consider the information contained in our earlier posts regarding the termination of an H-1B employee (including the post found here) as well as other obligations placed on the employer of an H-1B or E-3 worker (including the posts found here and here).
The employer should notify the employee of the termination in writing, and should offer to pay for the employee’s return travel
The employer should provide the terminated E-3 worker with written notice that their employment has been terminated. The notification should include the effective date of the termination.
The employer should also offer to pay the E-3 employee for the cost of reasonable transportation to their country of last residence. The employer can either purchase the tickets directly, or can pay the employee the cash value of the transportation.
Keep in mind that the employer only needs to pay for the employee’s return transportation if the employer terminated the E-3 employee. In other words, the employer does not need to pay for the employee’s travel if the employee voluntarily resigns or chooses not to leave the United States. Also, the employer does not need to pay for the return transportation costs of the E-3 employee’s dependents (their spouse and children).
The employer should give written notice of the termination to U.S. Citizenship and Immigration Services (if the petition was filed with USCIS) and should ask the Department of Labor to withdraw the Labor Condition Application
If the E-3 petition was filed with USCIS, the employer should provide written notice of the termination to USCIS. The employer can do this by sending a letter to the specific USCIS Service Center that adjudicated the petition and letting them know that you would like to withdraw the E-3 petition since the E-3 employee has been terminated as of a specific date. USCIS will then send the employer a notice revoking the petition – the employer should keep both a copy of their letter to USCIS and the notice returned by USCIS.
Similarly, the employer should reach out to the U.S. Department of Labor and notify them that you would like to withdraw the Labor Condition Application that was filed with the E-3 petition.
The employer should keep documentation of the termination
Taking the steps listed above and keeping documentation showing that these steps were taken is important for a number of reasons. Among other things, the employer’s failure to take these steps could entitle the E-3 employee to back pay. Remember that the employer is required to pay the E-3 employee until their employment is actually terminated. As a result, the employer could be responsible for back wages if they stop paying the E-3 employee before there has been a bona fide termination. By keeping proof that the steps above were taken (notifying the employee in writing, notifying USCIS in writing, and asking to withdraw the Labor Condition Application), the employer can more easily show that a bona fide termination occurred on a specific date.
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