Law Offices of Elise Schwarz

An H-1B visa holder who is terminated is no longer in lawful status. There is no “grace period” for a terminated employee – the date of termination is the date the visa-holder becomes out of status.

 If a terminated employee gets a new job offer and files a new H-1B petition, s/he can arguably port and accept a new position upon the filing of the new petition. The USCIS has authority to use its discretion to excuse the “late” filing of the petition. However, in the event that it does not, the employee may have to leave the US and obtain a new visa when the H-1B petition is approved.

 If an H-1B visa-holder is dismissed before the end of the period of authorized stay, even if for cause, the employer is required to withdraw the H-1B petition to ensure that it is no longer required to pay the wage of the terminated employee. In addition, the employer is liable for the reasonable costs of return transportation of the beneficiary to the beneficiary’s last place of foreign residence. However, the employer is not liable for these costs where the employee has voluntarily terminated the employment. Failure to pay the employee’s costs of transportation will likely only affect the employer’s future H-1B petitions, since no other penalty is specified.

 This does not constitute legal advice. If you need legal advice you should contact an attorney.

This entry was posted on Wednesday, January 30th, 2008 at 11:47 pm and is filed under H-1B Visa. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.