My H-1B Employer in New York Fired Me, but my H-1B Employer did not Notify the USCIS that they no Longer Employ Me or did not Pay or Offer to Pay, to Me, the Reasonable Costs of my Return Transportation to my Home Country. What are my Rights?

This article addresses these issues:

• What is a bona fide termination of an H-1B employee?
• Where your H-1B employer fires you before the expiration of your H-1B visa, but your employer does not effect a bona fide termination of you, what are your rights?
• The back wages and other monies that you may be entitled to where your H-1B employer fires you but does not notify the USCIS.

Executive Summary

Where your H-1B employer fires you before the expiration of your H-1B visa, your employer must effect a bona fide termination of you in order to end its obligation to pay, to you, your wages.  A bona fide termination, which cuts off your employer’s liability to you for your wages through expiration of your H-1B visa, requires:

• Notice to you that you are no longer employed;
• Notice to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, (the “USCIS”) that you are no longer employed; and
• That your employer pay or offer to pay the reasonable costs of your return transportation to your home country or country of last residence.

Failure to comply with the USCIS’s notice-to-the-USCIS and return transportation requirements renders your employer liable to you for your wages through expiration of your H-1B visa, with interest.

If you’re an H-1B employee in the New York City metropolitan area or in New Jersey and you’ve been fired and you believe that your H-1B employer has not effected a bona fide termination of you, call New York City H-1B Employment Attorney David S. Rich at (212) 209-3972 today.

What is the H-1B Visa Program?

The H-1B visa is a visa in the United States that allows U.S. employers to employ foreign workers in specialty occupations.  A specialty occupation requires the application of specialized knowledge and a bachelor’s degree or the equivalent of work experience.  The length of stay is three years, extendable to six years, after which the visa holder may reapply.

What Are Your Rights When Your H-1B Employer Fires You But Your H-1B Employer Does Not Notify The USCIS That You Are No Longer Employed?

If you are an H-1B employee and your employer fires you but your H-1B employer does not notify the USCIS that you are no longer employed, you have the right to complete a Form WH-4 (Nonimmigrant Worker Immigration Form and to file it with the U.S. Department of Labor (also referred to in this article as the “federal Department of Labor” or the “Department of Labor”).

Upon your filing of the completed Form WH-4, the U.S. Department of Labor will investigate your H-1B employer and will likely issue a Determination compelling your employer to pay, to you:

• Back pay at your regular salary from the date of your firing to the date of the Department of Labor’s Determination;
• Pre-judgment interest, from the date of your discharge to the date of the Department of Labor’s Determination, on that back pay; and
• Front pay, at your regular salary, from the date of the Department of Labor’s Determination to the expiration of your H-1B visa.

The Applicable Law

H-1B employers may not “bench” H-1B workers.  Rather, H-1B workers who have entered into full- or part-time employment with the employer must be paid their wages at the rate specified in the Labor Condition Application for nonproductive time when the nonproductive status is due to a decision by the employer (for example, because of lack of assigned work, lack of a permit or license, or any other reason).

When an H-1B worker’s employment ends before the expiration of the underlying petition, the DOL regulations require the employer to effect a bona fide termination in order to end wage obligations under the certified Labor Condition Application.

USCIS regulations require the employer to immediately notify the agency of the termination and, where the employee is involuntarily dismissed, to pay or offer to pay the reasonable costs of return transportation to his or her home country or country of last residence.

Even where the H-1B employee remains in the U.S. working for a different employer or remains in the U.S. on a different visa, the H-1B employer must offer to pay the H-1B employee’s transportation back to his home country.

According to U.S. Department of Labor case law, failure to comply with the USCIS’s notice-to-the-USCIS and return transportation requirements means that a bona fide termination has not occurred and renders the employer liable for the employee’s wages through expiration of the employee’s H-1B visa, even if the employer has clearly notified the H-1B beneficiary that his or her employment is terminated.

Failure to comply with the USCIS’s notice-to-the-USCIS and return transportation requirements renders the employer liable not only for the employee’s wages through expiration of the employee’s H-1B visa, but also for prejudgment compound interest on the back pay it owes and post-judgment interest until satisfaction.

To put it another way, the U.S. Department of Labor has determined that a bona fide termination, which cuts off employer liability for the employee’s wages through expiration of the employee’s H-1B visa, requires:

• notice to the employee that the employee is no longer employed;
• notice to the USCIS that the H-1B employee is no longer employed; and
• payment of return transportation abroad.

What Money Damages Can You Recover Where Your H-1B Employer Fires You Before the Expiration Of Your H-1B Visa But Your Employer Does Not Notify The USCIS That You Are No Longer Employed?

To sum up,  where your H-1B employer fires you before the expiration of your H-1B visa but your employer does not notify the USCIS that you are no longer employed, the U.S. Department of Labor may investigate your H-1B employer and may issue a Determination compelling your H-1B employer to pay, to you:

• Back pay at your regular salary from your firing to the date of the Department of Labor’s Determination;
• Pre-judgment interest, from your discharge to the date of the Department of Labor’s Determination, on that back pay; and
• Front pay at your regular salary from the date of the Department of Labor’s Determination to the expiration of your H-1B visa.

If you are an executive or a professional who holds an H-1B visa in the New York City metropolitan area or in New Jersey and you believe that you have been wrongfully terminated, you’ve been fired and you believe that your H-1B employer has not effected a bona fide termination of you, you believe that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, you have any other type of dispute with your H-1B employer, or you are negotiating your employment agreement or a business contract, call New York City H-1B Employment Lawyer David S. Rich at (212) 209-3972 today.