Hiring an H-1B worker comes with its own set of responsibilities and legal obligations. If an H-1B employee resigns without prior notice, employers must follow specific regulatory procedures to remain compliant with immigration laws, as failure to do so may result in hefty penalties and serious legal consequences. Key requirements include the timely withdrawal of the H-1B petition and maintaining thorough documentation of the separation. Yet, many employers overlook these steps, putting their organization at risk both legally and reputationally.
This article outlines the critical actions employers must take to ensure proper notification, accurate recordkeeping, and continued compliance when an H-1B employee leaves unexpectedly.
Why do H-1B Employees Quit without Notice?
There are various reasons why an H-1B worker may abruptly end their employment, such as:
Attractive Opportunities Elsewhere: A more rewarding job offer (be it higher pay, better benefits, or stronger career prospects) can prompt a sudden departure.
Toxic or Overwhelming Work Environment: Constant pressure, poor management, or lack of support can push employees to walk away in search of a healthier workplace.
Stalled Career Growth: When professional development feels stagnant or misaligned with company direction, H-1B workers may decide to pursue roles where their potential is better recognized.
Personal Emergencies: Medical issues, family responsibilities, or other life events can force employees to exit unexpectedly.
Visa Misunderstandings: Some H-1B employees incorrectly believe they can switch employers at will, without understanding the legal steps required to remain compliant with visa regulations.
Unplanned Resignation vs. Formal Termination: What’s the Difference?
There are some key differences between a sudden resignation and a formal termination, such as:
Initiation of separation: When the H-1B employer terminates the employee or the resignation is voluntary, the employee serves a notice period, and a structured process is followed, facilitating a smooth exit.
Return transportation obligation- If the employee is terminated, the employer must provide them with the return transportation to their last address abroad. However, if the employee quits on their own, then the H-1B employer is not required to assist them with return transportation.
USCIS compliance issues: When an H-1B employee quits suddenly, the employer may face delays in withdrawing the H-1B petition with USCIS, which can lead to potential compliance risks.
Risk of wage liability and audits: If an H-1B employer fails to notify USCIS, they may be subject to back wages claims, compliance violations, and complications in future H-1B filings.
Employer’s burden of proof- It is easier to maintain documentation during a planned termination. But when an employee quits without notice, important documentation may be delayed or entirely missed.
H-1B Compliance: Tips for Employers
Understanding H-1B Employer Obligations: A Step-by-Step Process
When an H-1B employee quits, the employer must document the entire process systematically and follow some mandatory steps, such as:
Verify and document the resignation: Whenever an employee submits their resignation or is formally terminated, the first thing an H-1B employer must do is get a written confirmation via email or a letter.
However, if the H-1B employee decides to quit without any communication, the employer must:
Try to contact the employee via call, text, and email
Ask them to respond within the next 2 days
Note the last date the employee reported to work or was in communication
Document all attempts made to contact the employee
Notify USCIS: If, after two days, the employee still does not respond, the H-1B employer must directly inform USCIS. This step is crucial because unless USCIS is formally notified, the employer may still be held liable for paying wages according to the H-1B regulations.
To withdraw the petition, the employer must:
Draft a letter addressed to the USCIS service center that approved the original H-1B petition
Include all essential details in the letter, such as:
Employee’s full name
H-1B receipt number
Job title
Date of registration/termination
Request USCIS to withdraw the H-1B petition as the employee has quit without any further notice.
Update the Public Access File (PAF): Once the employee leaves, the H-1B employers must update the PAF to avoid audit complexities and compliance issues.
Employers must add the following documents to the PAF:
A copy of the USCIS withdrawal letter
A record of the employee’s resignation
Any relevant notes on transportation obligations
Note: The employers must retain the PAF for at least one year after the H-1B employee’s end of employment.
Stop wage payments immediately: Once the H-1B employee quits, they must be removed from the payroll, as continued wage payments can imply ongoing employment, which will violate the terms and conditions of the H-1B program and create compliance issues.
Retain I-9 records: H-1B employers must securely save and retain Form I-9 records for three years after the date of hire or one year after the employment ends, whichever is later.
Remove access and secure company assets: Make sure to revoke the employee’s access to all internal systems, email, databases, and tools. And recover any company property such as ID cards, mobile devices, and laptops.
Review payroll and benefits obligations: Ensure the H-1B employee receives all due compensation, including their unused paid leaves, in accordance with company policy and labor laws.
Employers must also review and process the termination of benefits such as health insurance, retirement plans, and any other company-sponsored programs.
Conduct a compliance review: Conduct an internal audit to ensure all offboarding and compliance formalities have been properly completed.
During these internal audits, the H-1B employer must:
Review LCA records
Ensure USCIS was notified promptly
Cross-check wage records to confirm no overpayments occurred post-departure.
Consult an immigration attorney: Whenever an H-1B employee quits voluntarily or gets terminated, the employer must contact their legal counsel and update them to ensure no crucial step is missed in the process.
What Should Employers Do When an H-1B Employee Leaves
Consequences of Non-Compliance
Now that we have understood the key steps employers must take when an H-1B employee leaves without notice, it’s essential to understand the risks associated with non-compliance:
Continuing wage liability: The H-1B employer will be held liable for paying the H-1B worker’s wages until they notify USCIS and withdraw the petition.
No Bona Fide termination: The Department of Labor doesn’t consider a termination a “Bona Fide” until the H-1B petition is withdrawn, which can create serious legal and financial consequences.
Risk of DOL investigation: When an H-1B employee quits suddenly, it raises concerns about the organization and labor policies, which may lead to sudden audits to check for possible compliance issues.
Hurdles in future H-1B filings: Non-compliance with current H-1B requirements may make it difficult for employers to get their petitions approved in the future.
Reputational damage: Failure to follow H-1B compliance rules can lead to loss of trust and credibility among clients, partners, and regulatory bodies.
Avoid H-1B Wage Violations
Summing up
When an H-1B employee quits or is lawfully terminated by the employer, a standard offboarding and compliance process is followed to ensure regulatory obligations are met and any sort of liability is minimized. However, if the H-1B employee leaves abruptly without notice, the entire process becomes more complex and time-sensitive to manage.
In this situation, the employer must try to contact the H-1B employee and give them at least 2 days to respond. In case the employee does not respond or confirm their resignation, the employer must immediately document the entire process and notify USCIS to withdraw the H-1B petition. It is important to understand that until these essential steps are followed, the H-1B employer will be held liable for paying the employee’s wages and maintaining immigration records.
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