I terminated an international employee on 9/20. (I transferred her H1B when she started with my company.) She found another job on 11/1, and now she is asking me to pay her through 9/20 - 11/1. I reported her status to USCIS on 10/20. However, I clearly notified her that she was terminated on 9/20. The fact was, she didn't even show up in the office since 9/17. My question is: do I need to pay her through 9/20 - 11/1?
Thank you very much for your help!
You do not need to pay her. She is likely asking to show she was in status for the last 3 months.
You may need to pay for her transportation out of the United States. It is unlikely you are required to pay her salary but you should check with an employment attorney.
Attorney Robert Brown's (former INS Director, 1972-99) reply to your question is general in nature, and does not constitute legal advice as all facts are known to him. For specific advice or representation you should retain an attorney experienced in immigration law. Mr. Brown's reply on AVVO does not create an attorney/client relationship not constitute legal advice.
From an employment law perspective (your concern) you probably don't have to pay her ... but should offer her a one-way ticket home ... talk to an employment lawyer.
From an immigration law perspective (which, I suspect is her concern) she needs those pay stubs to prove that she lawfully transferred to the new employer.
Although you didn't mention why you terminated her .. I suspect that there is 'bad blood' and you should get your employment law attorney to give you the confidence to refuse her request for pay during a time when she wasn't working.
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
Your employee needs to show that she stayed in status between her termination and the new job. While you do not need to pay her, you may need to pay for her flight home. It is also a good idea to speak to an employment attorney.
Actually, I disagree in part with the other answers. I attended an inter-agency panel between USCIS and Dept. of Labor. The perspective appears to be as follows: when you terminate employment, USCIS says that person's status has ended; but you need to notify USCIS and you are liable for return airfare to the home country. However, you're supposed to notify USCIS immediately of that. DOL's view seems to be that you are obligated to pay the wage until you've notified USCIS. So by my calculation, DOL may say you are liable to pay her wage through 10/20/14. It's very interesting she wants to be paid through 11/1....my guess is that she is trying to show she was "in-status" and working during that time, which may not even be fully necessary if her I-94 was valid at the time of filing (in many cases, USCIS may be able to grant a change of employer/extension as long as the I-94 is valid at time of filing, after a reasonable period of time between the layoff and new H-1B filing. I will usually, in these cases, want to talk with the new H-1B lawyer and find out what they are really asking. I would not just give someone a paycheck without annotating the date of termination of employment on it; usually the last check is a "hard check". You don't want to violate any DOL policies on paying the wage up until the date of notification to USCIS of termination, but you also don't want to hand over a check not knowing if the person is planning on using it to misrepresent a status to USCIS. People tend not to file H-1Bs without a lawyer, so as funny as it may sound, your lawyer probably needs to call her new lawyer. Here is one "fact sheet" from DOL that talks about notification to USCIS: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62I.pdf and here is another good regulatory link so you can see this for your self (I know! It's clear as mud!): http://www.law.cornell.edu/cfr/text/20/655.731
This response is a general one and does not create an attorney client relationship.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline