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H-1B compliance, bona fide Termination

When H-1B employers fail to pay the required wage to the H-1B worker, the employer can be subject to fines and demands to pay back wages. The employer is obligated to pay the worker the required wage starting thirty days after the worker arrives in the United States, and the employer is obligated to pay the required wage until the end date of employment on the Labor condition Application (LCA) or until there is a bona fide termination of employment. If you have questions about whether H-1B employment has begun or terminated for purposes of H-1B laws, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience successfully representing both H-1B employers and H-1B workers. Contact us for a complete evaluation of your matter.

When does employment begin?

An H-1B worker enters into employment when the worker first makes her or himself available for work or otherwise comes under the control of the employer, according to federal regulation 20 C.F.R. § 655.731(c)(6)(i). The employer is obligated to pay the worker the required wage starting thirty days after the worker arrives in the United States, even if the worker has not entered into employment. However, the employer does not have to pay when the H-1B worker is in a nonproductive status for reasons that are not related to his or her employment and are not caused by the employer.

What is a bona fide termination?

To effect a bona fide termination, the employer must take three steps: it must give the employee notice that the employment relationship is terminated; it must notify DHS that the employment relationship has been terminated; and it must provide the employee with payment for transportation home under certain circumstances, according to federal regulation 20 C.F.R. § 655.731(c)(7)(ii). A bona fide termination is not complete until all three events have occurred.

When is the employer required to pay transportation costs home to the worker?

The employer must provide the employee with payment for transportation home under certain circumstances. An H-1B employer is liable for the reasonable costs of return transportation of the foreign national abroad if the foreign national is dismissed from employment by the employer before the end of the period of authorized admission. However, if the H-1B worker voluntarily terminated his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed and is not entitled to receive transportation costs.

Contact us for a consultation

If you have questions about H-1B wage compliance, or any other immigration matter, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. The competent attorneys at The Law Firm of Shihab & Associates are experienced H-1B investigation matters, as well as other areas of immigration. We represent clients nationwide in various matters including green cards and permanent residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, investor visas, PERM applications, and many more. We will not tire until we get the desired results for you within the bounds of the law. Contact us for a consultation.

Client Reviews
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