Practice Areas

The Many Faces of Stern Elkind Curray & Alterman LLP

Since 1985,Stern Elkind Curray & Alterman has limited its practice to immigration law, with a special emphasis on matters relating to the employment of foreign professionals. Mr. Stern and Ms. Elkind founded the firm with the goal of providing the very best immigration advice and representation to our clients. As the firm has grown, we have continued our commitment to maintaining a high level of expertise combined with an understanding that our clients are individuals whose lives are deeply affected by the work we do. Over the years, we have developed expertise and wide-ranging experience in all facets of immigration law.

We continue to be deeply affected by our clients, some of whom are introduced within this web site.

New Decision Regarding Termination of H-1B Employees

January 06, 2004

A recent decision by an Administrative Law Judge in a case concerning the termination of an H-1B employee penalized the employer for failure to pay the employee wages for a period of four months and a number of other H-1B violations.

The administrative law judge ruled that the H-1B employee was not "terminated" under the law until the employer notified the INS (now USCIS) of the fact that the employee was no longer working for the company. The Administrative Law Judge cited a regulatory section that states an employer must continue to pay an H-1B employee his/her salary until such time as there has been a bona fide termination of the employment relationship. The section then makes reference to the fact that INS regulations require an employer to notify the Service of the termination, and that the employer must provide the employee with payment for transportation home under certain circumstances. Nothing in the regulation links these obligations.

In our opinion, the regulation does not state that a bona fide termination only occurs after the INS has been notified and payment has been made for transportation to the H-1B employee's home country. In fact, shortly after this regulation was promulgated, the top enforcement lawyer for the Department of Labor Wage and Hour Division expressed her opinion that these obligations are not linked and that a bona fide termination will occur when the employee has been properly notified that he/she is no longer employed by the H-1B petitioner.

We are however now recommending that our clients send a letter to USCIS at the same time the employee is terminated. This letter should simply state that the H-1B visa holder is no longer employed by your company. Please be advised, however, that this letter will lead to the revocation of the H-1B petition. Accordingly, a new petition will be required if the individual is subsequently rehired.

Request a Consultation

News