Editor's Note: The following letter refers to the article in the June 3rd issue of Immigration Daily "After The Termination: What's Next?" by Sherry L. Neal.
Can Ms. Neal cite authority for this statement in her article? I suspect it may be inaccurate and misleading, but Iím open to comment. "For example, when a company fires an employee who is on an H-1b temporary visa the company must notify the INS by withdrawing the H-1b petition."
Stephen B. Horton, Esq.
Ms. Neal responds:
The INS Regulations at 8 CFR 214.2(h)(11)(i)(A) states "............If the petitioner no longer employs the beneficiary, the petitioner must send a letter notifying the director or the Regional Administrator who approved the petition." Although this has been in the INS Regulations for many years, employers often didn't follow this Regulation since there was no real penalty for not following. In fact, employers seldom notified the INS because it allowed them to "bench" an employee - i.e. not pay the employee while in unproductive status. However, when the Department of Labor issed the Regulations in December 2000, implementing the American Competitiveness and Workforce Improvement Act of 1998, the Department of Labor said the employer must pay the wages of the employee during the entire time that the employee is paid but that payment is not required when there is a bona fide termination of employment. The Department of Labor then cited the INS Regulations (requiring the employer to notify the INS in cases of termination) as the proof of whether there is a bona fide termination. The relevant Department of Labor Regulation is 20 CFR 655.731(c)(7)(ii) which says, "Payment need not be made if there has been a bona fide termination of the employment relationship. INS Regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)."
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