H-1B Withdrawal - when the employment relationship ends

When the employment relationship ends between a petitioning employer and an H-1B nonimmigrant worker, the employer and employee have certain legal obligations to fulfill.  The following information is general in nature, and should not be used as a substitute for legal advice from competent counsel in an individual case.  At the bottom of this article is a Sample I-129 Withdrawal Letter.

Withdrawal Notice

An employer is required to withdraw, by letter to USCIS, the H-1B petition filed and approved on behalf of an H-1B employee when the employment relationship ends, whether through termination or resignation.  This is required because, unless USCIS is notified of the petition withdrawal, wage obligations under the Labor Condition Application may continue.  It is not enough to provide notice just to the H-1B employee.  An employer can accomplish withdrawal of the petition by sending a letter to the USCIS service center which approved the H-1B petition.  At the bottom of this page is a sample letter that can be used to withdraw an H-1B petition.  Please note that upon sending a withdrawal, the petition is no longer useable, such that a re-hire of the employee would require a completely new H-1B petition filing with fees.  Therefore, careful consideration should be given before sending the withdrawal.  Upon receipt of the withdrawal letter, USCIS will issue a confirmation letter of the withdrawal some weeks or months later.

Changing Employers

An H-1B employee who has been counted in the H-1B cap once before can move to another employer upon the filing of a petition by the new employer under certain circumstances (and not before it is filed).  Once counted, an H-1B beneficiary does not need to compete in the H-1B cap again unless he or she leaves the U.S. for one year or longer.  This ability to move to another H-1B employer is not affected by a withdrawal.  It is usually preferable to have the new petitioning employer file the H-1B petition prior to the termination of the H-1B worker's employment. An H-1B employee who leaves the H-1B petitioning employer before a new H-1B petition is filed by another employer, however, is not considered automatically out of status solely on the basis of a cessation of the employment provided the new employer's H-1B petition has been filed within 60 days of the termination. See 8 CFR 214.1(2)   An employee also has the option of leaving the country and re-entering following the approval of a new H-1B petition by another employer.  

Return Transportation Abroad Requirement

An H-1B employer is required to offer return transportation costs if the employer terminates the employment relationship prior to the end date of the petition.  This requirement does not apply if the employee terminates the relationship, or if the relationship ends upon the last date of the H-1B petition validity.  Generally, return transportation cost is considered to be coach class one way airfare to the person's country of nationality.  Because the statute and regulations do not specify the manner in which this return transportation requirement is to be carried out, many employers opt to provide a terminated H-1B employee with a 30 day period following termination within which to designate a preferred departure date that is 60 days or less from the date of termination, so that the employer can arrange the most cost effective flight on or around the desired date of departure.  This also ensures that the return transportation cost is utilized for return transportation and not some other purpose.  Because an H-1B employee may seek petitioning sponsorship from another H-1B employer, or change status to some other visa category (such as a dependent spouse H-4, L-2, O-3, etc, or F-1 student, or E-3, TN, O-1 or other work visa status) and not leave the country, many employees opt to forego the return transportation offer altogether.

SAMPLE H-1B WITHDRAWAL LETTER

[place on company letterhead and remove all bracketed sections after entering info]

Date

                               INTERFILE WITH [CASE RECEIPT NUMBER ]

[REFER TO ADDRESS LISTED ON THE I-797 APPROVAL NOTICE BUT ALSO DOUBLE CHECK THAT ADDRESS ON THE USCIS.GOV WEBSITE BECAUSE OF SOME OFFICE ADDRESS CHANGES]

            Re:      Withdrawal of I-129 Petition for a Nonimmigrant Worker (H-1B)

By _____________, Inc. on behalf of _____________([CASE RECEIPT NUMBER ])

Dear Reviewing Officer:

                        This letter is written to notify the Citizenship and Immigration Services that as of the date of this letter the petitioner no longer employs the H-1B worker referenced above pursuant to H-1B status.  Petitioner wishes to withdraw the above-referenced Petition for a Nonimmigrant Worker (H-1B) that it filed on behalf of the beneficiary.  Enclosed is a copy of the Approval Notice. 

                        Thank you for your attention to this request.

Sincerely,

[Name]

[Title]

Enclosure (Copy of Approval Notice, Form I-797)

cc:       Mr./Ms.__________________ (Beneficiary)