A recent lawsuit highlighted the importance of employers quickly informing USCIS when an H-1B employee is terminated. In this case, a judge ruled that an H-1B worker who was let go is entitled to back pay because the employer didn’t promptly cancel the H-1B petition with USCIS after notifying the employee of their termination. According to regulations, if an employer fails to notify USCIS in writing about the termination and requests the cancellation of the H-1B petition, the employer is still responsible for paying the worker’s LCA wages until the petition is officially revoked. This means that an H-1B employee is not considered fully terminated until USCIS processes the revocation, even if they stop working.

When terminating an H-1B employee, employers must meet several requirements: (1) inform the employee, ideally in writing; (2) offer to pay for the employee’s return travel to their home country; and (3) notify USCIS in writing about the termination. Not being able to prove that these steps were followed can lead to serious issues with the Department of Labor (DOL), including backpay, fines, and other penalties. We recommend using a courier service to send the H-1B cancellation request to USCIS, keeping a scanned copy of the request for records. USCIS can be slow to confirm cancellations, so employers need proof of submission, like a tracking number, to avoid liability for unpaid LCA wages.

In the lawsuit, the terminated H-1B worker claimed they should be paid for the time between their termination and USCIS being notified. The judge agreed and ordered the employer to pay the worker at least the local prevailing wage or the actual wage they were receiving during that time. Employers are responsible for paying H-1B employees until the termination is officially recognized by USCIS, with few exceptions for unpaid leave. H-1B employers should consult their immigration attorney if there is ever any doubt about the H1B wage requirements.

In the lawsuit, the employer argued they didn’t have to keep paying the worker because they stopped working and returned to their home country. However, the judge found that the employee left because they were terminated and could not find another job in the U.S. Therefore, the employer was held responsible for paying the wages.

If you have questions about the termination of an H-1B worker or any other U.S. immigration issue, please reach out to us. Our experienced attorneys can provide the right guidance for your situation and help ensure your company stays compliant with employment-based visa regulations.