When H-1B Visa Holders and the Recession Collide

By Donald Sears  |  Posted 2009-06-29 Print this article Print

Whatever your opinion on H-1B visas and foreign workers--and for many, this issue gets under people's skin--please understand this: The law around these temporary worker visas is complex and not without its issues in understanding and enforcement.

A recent CIO Insight article written by an immigration lawyer gives a pretty full picture of what an employer is dealing with, especially as companies are cutting full-time employees who are citizens and H-1B visa holders.

Here's the kind of thing employers, human resources departments and CIOs are dealing with (and a whole lot is more discussed in the article):

Although the H-1B visa allows you to terminate an employee and does not impose any obligation for continued employment, it does impose specific obligations on employers if these workers are terminated early.

• Employers must notify U.S. Citizenship and Immigration Services (USCIS) of the employee's termination and should also withdraw the Labor Condition Application (LCA) that was certified by the Department of Labor as a prerequisite to filing the H-1B petition.

• When an H-1B employee is terminated early, the employer must pay a reasonable cost for transportation to return the employee to his or her last country of residence. Of course, this obligation only applies if the terminated employee actually leaves the United States. It is a good practice to include information about how this will be handled in the H-1B employee's separation package. This allows the employer to establish a uniform mechanism for complying with the requirement and also documents that the offer was made in the event that the employee does not leave the United States upon termination.

Failure to meet either of these obligations can result in a determination that the employer has not effected a bona fide termination. The H-1B program mandates that the employee be paid a required wage rate and provided benefits comparable to those provided to others, so unless and until the H-1B employment relationship terminates, the obligation to pay the employee and provide benefits continues. This issue most commonly arises in the context of a complaint filed with the Department of Labor's Wage and Hour Division, and recent cases have found the employer liable for back wages and benefits where the employer has not notified USCIS of the termination or paid for the employee's transportation abroad.

When dealing with the DOL, we are talking about a plethora of procedures, documentation and legal liability that creates the potential for a ton of confusion and bureaucratic process nightmares.

Just ask Cognizant.

But you can't really blame the DOL for working within the boundaries and constraints that were drawn up in this program.

It's no wonder that there are very few happy proponents of H-1Bs on either side of the equation. Except these guys. Oh, and also these folks.

You don't have to look very far for abuse by employers and workers with H-1Bs. At the end of the day, it has to be difficult to police. That's how some companies are allegedly able to skirt the law for a while. But the feds are starting to catch up.

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