DOL Administrative Review Board rules H-1B employers MUST notify USCIS of termination in order to END H-1B obligations.

The Labor Dept. Administrative Review Board ("the Board") addressed what circumstances constitute termination of employment for purposes of the employer's H-1B obligations in the case: Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06).

The Board held that an H-1B employer MUST notify the USCIS (formerly "INS") of the termination in order end the employer's H-1B obligations, including the duty to continue to pay the employee the required wages. The Board ruled:

Consequently, section 655.731(c)(7)(ii), when read in conjunction with its accompanying comments elucidating its purpose, compel us to hold that, to ultimately effectuate a “bona fide termination” under the INA, an employer must notify the INS that it has terminated the employment relationship with the H-1B nonimmigrant employee and provide the employee with payment for transportation home. 65 Fed. Reg. 80,170 (Dec. 20, 2000) (“The [DOL] also observed that the employer, at any time, may terminate the employment of the worker, notify INS [now DHS], and pay the worker’s return transportation, thereby ceasing its obligations to pay for non-productive time under the H-1B program.”).10 Thus, we reject the Administrator’s assertion in this case that a “bona fide termination” under the INA occurs simply when an employee receives notice of his or her termination.11 While notice to the employee is a necessary concomitant to termination of the employment relationship, that alone is not sufficient to end the employer’s obligation to pay the required wages to an H-1B employee. The employer does not effect a “bona fide termination” and, therefore, end its obligation to pay the required wages to the H-1B employee unless the employer has also notified the INS, so that the INS can cancel the H-1B employee’s visa.

Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06) (emphasis added). A copy of the opinion is attached in PDF format.

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