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.
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, which in most cases will be either the California Service Center (CSC), or Vermont Service Center (VSC). 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.
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. 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. An H-1B employee who leaves the H-1B petitioning employer before a new H-1B petition is filed by another employer, however, is considered no longer in status as of the date of termination. There is no official grace period, although some people confuse the 10 day period added on to the end of the H-1B petition validity as a grace period upon termination. That is not the case, as the 10 days is only provided at the end of the validity period. Instead, USCIS generally exercises "discretion" to approve an H-1B change of employer petition if the period between termination and the new H-1B petition filing is short, usually 30-60 days maximum (although there is no absolute rule). 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]
CERTIFIED MAIL --
RETURN RECEIPT REQUESTED INTERFILE WITH
[CASE RECEIPT NUMBER ]
USCIS California Service Center [use this address for receipt numbers
2400 Avila Road, 2nd Fl, Rm. 2312 beginning with “WAC”]
Laguna Niguel, CA 92677
USCIS Vermont Service Center [use this address for receipt numbers
75 Lower Welden Street beginning with “EAC”]
St. Albans, VT 05479-0001
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.
Enclosure (Copy of Approval Notice, Form I-797)
cc: Mr./Ms.__________________ (Beneficiary)