3/25/2008

Employers often terminate an H-1B employee for whatever reasons including the H-1B status lapse or lack of projects for a period of time, and then from time to time call them and put them back on payroll in the form of a new hire which is in fact rehiring. Such termination is effected by a letter of termination or layoff or agreement to separate.

However, from the perspectives of the enforcement body of the U.S. Department of Labor that enforces the H-1B Labor Condition Application, the employment termination is not effected during the period between termination and rehiring, unless one of the following two occurred, and consequently the employer will be liable for the back wage during the period of alleged termination.

The two circumstances that effect termination of H-1B employment without the subsequent liability attached to rehiring of the terminated H-1B employees include:

(1) Withdrawal and notice of withdrawal of H-1B petition with the USCIS or

(2) alien's transfer of the H-1B to a new employer.

If the H-1B employer rehires the former H-1B employees without one of these two events effected, such employer will be liable for the back pages for the period between the employee's termination from the employment and rehiring.