Terminating an H-1B Employee

With the declining US Economy, many employers are laying off employees, and some of them are H-1B employees. However, unlike ordinary employees, the Employer is supposed to take certain measures, while terminating an H-1B employee.

1. NOTIFY THE EMPLOYEE: The employer is supposed to pay the H-1B employee the amount promised under the LCA., when that employee is "benched", ie non performing employee due to lack of work. Rehiring a benched employee does NOT constitute a termination. The Employer is supposed to provide the Employee with a Notice that the Employment relationship is terminated. Oral termination may run into proof issues, so a written termination letter is advisable. Please note that if an employee takes time off voluntarily, (for instance to have a baby, or to care for a sick relative), the Employer is under no obligation to pay or to terminate during that period, if the employee joins him again.


2. NOTIFY USCIS and perhaps the DOL: The H-1B regulations state that the Employer shall notify the USCIS of terminations. The Employer should write to the Office that he filed the H-1B with and notify them of the termination. Although there is no regulations that the Employer should notify the DOL, it is advisable to do so. This is bacause under the LCA, the Employer's liability to the Employee continues for 1 year after the termination, if the LCA is not terminated as well. Although there are no Govermnment sanctions for failure to notify, the H-1B employee can file with the DOL, who has the authority to enforce the Employer to pay back wages to the Employee
Below are the addresses of the Government Organizations:

USCIS
California Service Center
P.O. Box 10129
Laguna Niguel, CA 92607-1012

USCIS
Vermont Service Center
ATTN: I-129
75 Lower Weldon Street
St. Albans, VT 05479-0001

Department of Labor
Look at your regional office:
http://www.doleta.gov/regions/regoffices/

3. Pay for Employee's transportation home: This only applies if the H-1B employee was to leave permanently for his home country. So if the H-1B employee decides to stay in the US and take up appointments any wharere else, the Employer does not need to pay for transportation home. The transportation has to be "reasonable." So first class plane fair is probably not reasonable. Also, the employer does not have to pay for the H-4 beneficiaries.

Whats wrong with US Immigration

If its not that we are probably the only country that do not have a workable immigration policy, that the nation is totally polarized about immigration topics, now we learn that the appointment of Immigration Judges were also polarized during the Bush Government.

Under Alberto Gonzales' reign, the Justice Dept hired Immigration Judges (IJ) whose only qualifications are being a "good republican" and a "longtime donor to the party." One of those judges, when asked what his weaknesses were, actually said "blondes."

The Constitutional debate as to what can be done to unseat federal judges, appointed for life is important. But so also are people denied cases simply because maybe these "right leaning" judges felt that the defendants would not make "good republican" US Citizens. Can every case during that period of time, adjudicated by those judges be reopened?

LCA, DOL and H-1B

A precondition to filing an H-1B petition is that the Employer files a Labor Condition Application (LCA) to the Department of Labor (DOL) attesting that
they will pay the alien the prevailing wage during the period of the employment and
that they are not adversely affecting other workers by hiring,
or not replacing striking or laid off US workers with the H-1B non immigrant

The Employer is supposed to:

Display a copy of the LCA for 10 days in the business premises
Keep the LCA in a file for public access for 3 years
Provide a copy of the LCA to the H-1B employee

This condition has to be met during the entire term of the employees work until the termination of employment. Benching an employee and later rehiring that employee is not a termination and the employer has to pay the employee the full amount promised in the LCA.

If however the employee takes a leave due to a voluntary request (for example going back to the home country for some time) or for the employee's convenience, then the employer is not required to pay the employee.

The Employer must notify the Citizenship and Immigration Services upon termination of the H-1B employee.

The DOL can and does enforce that employers abide by the terms and conditions of the LCA. Employees stiffed by their employers can complain to the DOL, who then upon determining the truth, orders the Employers to pay the back wages due to the Employee and also assess fines for non compliance.

However the DOL's authority to enforce terms of employment only extends to the LCA. Any subsequently held contracts between employers and employees cannot be subjected to DOL enforcement. In a recent case, In the Matter of Mahmoud Ashraf Galal (2008-LCA-00010) the employee asserted that the employer's agreement to increase the employees wage to 90K per year (when the LCA promised $65K) and the employer's promise to pay employee work related travel expenses were contractual and the DOL did not have the authority to enforce them. The Employees should file under State Law for contractual remedies. The determination will be done under individual state law.

Bills for Employment Based Immigration

The United States have a fixed quota as to how many immigrants they can let in from a particular country. Some countries like China and India has a large pool of qualified immigrants who can come to the US and fill professional positions, and thereby improve the US economy. However, with China and India prospering, and the green card process taking longer and longer, many of these highly qualified personnel are going back to their own countries. No one can deal with the uncertainty of an US green card taking in some cases 7 to 8 years. As a result, US businesses are loosing their competitive edge.

Not every country uses up their quota. Thus those visas are wasted. During Clinton's reign, these unused visas were collected and given to everyone at large. This is a bipartisan issue affecting both small and large businesses and American competitiveness. Currently there are 3 bills in the legislature to ameliorate the problem. They are:

1. H.R. 6039, by exempting highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit, would help U.S. employers retain these talented individuals in the U.S. workforce. For example, foreign nationals comprise half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities.

2. H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per
country limits on EB green cards.

3. H.R. 5882 will help to reduce visa backlogs by “recapturing” EB green cards from prior years
that went unused due to government processing delays and making them available immediately to those who meet the requirements.

A letter signed by 130 Corporations, like Microsoft, Google, Sun Systems, E Bay, Coca Cola Company, etc and educational institutions was sent to House of Representatives.

A comprehensive immigration reform may be hard to get a consensus on. But this bill is not for "illegal people" who the likes of Lou Dobbs chastise. These are highly qualified individuals, who if they go back, they will enrich their own countries, and US will fall behind on their Math and Science competitive edge.

The Reality of Immigration

According to a recent posting by the American Immigration Lawyer's Association, illegal immigrants comprise of about 5 % of the US workforce and contribute about $520 billion to the Social Security System, an amount that they wont ever get back. Even at the State level, these "undocumented immigrants still pay more in taxes than they use in public services." This money will go towards payment of social security benefits of US workers.

Most undocumented immigrants come to the United States to work. They come here because they can find work. If the work dries up, they will NOT remain in this country and be far away from their families. Thus sheer free market forces, and restrictive immigration laws control the whole phenomena of undocumented workers.

US was founded on the principle of Free Market System. Ben Bernanke espouses it. Yet the raids on businesses by Immigration and Custom Enforcement (ICE) is actually hurting the already battered US economy further by shutting down businesses. Why is ICE going after people simply working for a better living and paying taxes in the US, instead of going after aliens who are criminals? Because unlike what Lou Dobbs preaches, there are very few illegal aliens who are actually criminals. The agency would not need to have that many officers if the only people they deport were criminals.

So, ICE, whose parent is the Department of Homeland Security, makes work a crime and a security issue, arrest and deport men and women who are working, and thereby hurt the US economy. We have a Government that has already hurt us by going into a costly war against Iraq. When will they stop?

Fingerprinting for Reentry Permits

The USCIS recently introduced the procedure of a fingerprinting check for green card holders who wished to stay out of the US for more than 6 months. There is a presumption that individuals who wishes to stay out of the US for more than 6 months are abandoning their Permanent Residence status. So BEFORE they leave the US, they need to file the reentry permit (Form I-131) expressing their intent to come back to the US and they can stay outside the country for 2 years. Now they are going to be fingerprinted. Not only do they have to pay $80/- more to the US Government, but file the reentry permit sufficiently in advance of their departure to be able to have the fingerprinting done before they leave. Some (very few) Consular posts might do a fingerprinting, but the majority of posts wont.

Usually individuals leave because their job or family ties compel them. With multinational industries spread out among several countries, there is very often the need to quickly dispatch personnel from the US Companies to their subsidiaries abroad. Or sometimes, the Permanent Resident's relative back home may be sick wand have to one to take care of. Or they might want a degree from Oxford, and get the admission notice less than a month before class starts. They have to wait.

One has to wonder why this fingerprinting is necessary. OK, we all know the Government is justfully very concerned about National Security. (And that the GOP feeds off of this National Fear). But if a Permanent Resident commits a crime, there is already a procedure for Deportation. The fingerprints of the permanent resident has already been taken and should be stored in some Government computers somewhere. And citizens can go anywhere without any restrictions.

Also the Government can only check their database in the US for past crimes. So, conceivably a Permanent Resident can have no crimes, and still can go to a 1 year terrorist camp in Pakistan, and come back and perpetrate a crime. But so can a US Citizen.

Conversely a person wishing to flee the United States for a heinous crime will not apply for the reentry permit anyways.

So why make these permanent residents pay $80/- to get wait for months to get fingerprinted. What purpose does it serve?

TN to Green card

TN visa is given to Canadian and Mexican Nationals under the NAFTA treaty. These individuals qualify for and work in jobs specified under a specific Schedule enumerated in the NAFTA Treaty with Canada and Mexico.

Unlike H and L visas, TN visa holders could not apply for Permanent Residency, (green card) because this visa was temporary and did not allow for dual intent (ie intent to hold both temporary and permanent visas) in the US. However, unlike visitors visa, the TN visa holder did not have to maintain foreign residency abroad. Also, a June 1996 letter by Yvonne LaFleur, Chief of Business and Trade branch at INS, said that the TN worker could do consular processing of their permanent visas. Although this letter is not binding, it has been followed by most Consular Posts.

Logistically, this was not possible earlier, because TNs were given for 1 year and most green cards took more than 1 year. So the TN visas would not be extended after that year if one applied for the Permanent Residency. However now TN visas are being given for 3 years. So many TN nationals can now probably apply for their Permanent Residency and able to do consular processing of their green card during this time. With only 65,000 H-1B visas available, it worth a shot for many desperate employers and employees.