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I had to terminate the employment of an H-1B employee due to the Corona virus outbreak. What are my obligations as an H-1B Employer? Do I have to pay for the employee’s flight?

By April 14, 2020March 29th, 2021COVID-19
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Covid-19 has changed the rules for travel, engagement and employment. Many companies have started to reduce wages and put staff on leave, and some companies have terminated employees.

If your company had to terminate employment of an H-1B employee, here is a list of things you should keep in mind to comply with immigration and labor law regulations:

You are liable for the “reasonable costs of return transportation of your employee abroad”

If you terminated the employment of your H-1B employee prior to the period of authorized admission (the date that is on the employee’s I-797A Approval Notice), you are liable for the reasonable costs of return transportation of the employee abroad (to his/her last place of foreign residence). You can either offer to directly purchase a flight ticket for the employee or you can offer him/her a cash payment.

Please note that if the employee voluntarily terminated the employment, you would not be liable for the costs of return transportation.

You should notify the USCIS Service Center where the original H-1B petition was filed that the employment with the H-1B employee was terminated

You should send a letter to the appropriate USCIS Service Center and notify USCIS that you would like to withdraw the H-1B petition as the H-1B employee’s employment has been terminated as of a particular date.

USCIS should then send you a notice revoking the H-1B petition, and you should keep both the record that you sent the letter to USCIS along with the USCIS notice revoking the H-1B petition in your Public Access File.

If you do not notify the USCIS Service Center, the H-1B employee could be entitled to back pay and interest until the Labor Condition Application validity.

You should withdraw the Labor Condition Application

You should reach out to the Department of Labor and notify them that you would like to withdraw the Labor Condition Application that was filed with the H-1B petition.  Failure to follow these steps could result in an employee being entitled to back pay.

You can find out more about whether an H-1B employee can take leave by clicking here.

You can find key immigration information related to the Corona Virus below.

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