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Ask the HR Expert: Global HR

Posted by NEHRA  July 28, 2011 09:00 AM

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Q. My present employer does not wish to renew my HB-1 visa. At age 61, am I able to apply to immigration courts or the immigration office for immigration status – in order to become an American citizen at this point? I have been here for 11 years. There is no work available in Canada for me, and it would be extremely hard to find work. Any advice would be appreciated.

A. There is no way to go from a temporary work visa status directly to U.S. citizenship. You may be eligible to “self-petition” for lawful permanent residence (“green card”) status if you can demonstrate to USCIS that you are someone who has “extraordinary ability” in your field; or that your work is in the national interest of the United States. These categories for green card status allow an individual to petition for him or herself, however the standards are high and difficult to meet. If your employer is unwilling to renew your H-1B temporary work visa, then you should arrange a consultation with a reputable immigration lawyer to determine if you have any options to self-petition for permanent residence status or to obtain another type of visa status in the U.S.

SUSAN COHEN

Q. Is a company required to pay an employee with an HB-1 via their total yearly salary for terminating their contract early?

A. The H-1B visa regulations require an employer to pay the H-1B employee the higher of the prevailing wage or the actual wage (the wage held to other, similarly qualified workers) for the period of time indicated in the Labor Condition Application filed with the Department of Labor and in the H-1B visa petition filed with USCIS. The required payments are supposed to be made on an ongoing, regular basis in prorated installments, as long as employment continues. If the employment is terminated, the employer is required to notify USCIS to end its obligation to continue paying the required wages. There is nothing in the Department of Labor regulations that requires an employer to pay the total yearly salary if the contract is terminated early, however if the employer does not notify USCIS that the H-1B worker is no longer employed, the employer may still be liable for payment of back wages in an enforcement action taken by the Department of Labor.

SUSAN COHEN

Q. How does one legally terminate an employee with an H-1B visa?

A. The Department of Labor takes the position that the employer must “properly” terminate an H-1B employee; otherwise, the DOL believes that the employee is entitled to continued wages. First of all, the termination must comply with state law.

In addition, the Labor Condition Application and H-1B petition must be withdrawn upon termination to comply with DOL rules. There is no specific date, I would think within 30 days are reasonable. I have only seen issues where the DOL required back pay where the employer did not do this under the theory that the employee wasn’t “properly terminated.

Secondly, as an H-1B worker, the Company is obligated to provide the employee with the reasonable cost of return transportation to the home country, should s/he decide to depart the United States. Generally, this should be done with other paperwork in connection with the termination. I put this in a form for the employee to decide and retain it in the employee’s HR file.

I always recommend that you let them know that they need to consult legal counsel for advice about maintaining legal status. This is not a requirement but I think it’s a good idea.

There are no other immigration compliance issues except the I-9 retention date begins at termination.

CAROLYN FUCHS

Q. Are there any exceptions to the rule that an H-1B employee can only remain in that status for 6 years?

A.
Basically, there are 2 exceptions:


  • After remaining in the U.S. for 6 years in H-1B status, the employee can be transferred to a foreign location and remain there for 12 months. Or the employee can just remain outside the U.S., working for another employer or doing whatever they wish. Then s/he is eligible for a whole new period of H-1B stay. If the employee works outside the U.S. for 12 months they also may be eligible for an L-1 Intracompany Transferee visa.

  • The employee may remain for a 7th and even further years if prior to the beginning of the final (6th year), a green card application is filed for the employee which is still pending when the 7th or further H-1B extension is sought.


CAROLYN FUCHS

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).
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