When a U.S. employer ends the employment of a foreign worker in H-1B, H-1B1, or E-3 status, the process must be handled carefully. Unlike most work categories, these visa classifications come with specific compliance steps that must be completed to end the employer’s legal and wage obligations.
If those steps are not followed, the employer may remain responsible for paying wages even after the employee stops working.
This blog explains the key points every employer should know when ending employment for workers in these categories—written in clear, practical terms.
Why a Special Termination Process Exists
The H-1B, H-1B1, and E-3 programs are tied to the Labor Condition Application (LCA).
Because the LCA guarantees certain wage protections, the law requires employers to clearly document the end of employment. If the government determines that the termination was not completed correctly, the employer may still owe the employee the required wage.
This is why employers must follow a specific, clearly documented procedure when separating foreign national employees in these categories.
The Three Steps Employers Must Complete
To properly end employment and stop future wage obligations, employers should complete all three of the following actions:
1. Give the employee clear, written notice of termination.
The employee must be explicitly informed that their employment has ended.
This may be done through a written termination letter, email confirmation, or HR-official separation notice.
2. Notify the government agency that approved the worker’s status.
For H-1B workers, this means informing USCIS that the employment has ended so the petition can be withdrawn.
For H-1B1 and E-3 workers who obtained their status through a U.S. consulate, it is still best practice to send a withdrawal notice to USCIS to document that the employment has ended.
Even though these cases are often issued at a consulate, USCIS is the agency that reviews compliance for LCA-related matters.
3. Offer or pay for reasonable transportation home (H-1B only).
U.S. law requires employers to offer to cover the cost of a one-way ticket for H-1B workers returning to their home country.
This requirement does not apply to H-1B1 or E-3 workers, but many employers still keep records of the offer as part of their compliance files.
What Happens If These Steps Are Not Completed?
If any of these steps are skipped or incomplete:
- The employer may continue to owe the required wage.
- Back wages can add up quickly if an investigation occurs.
- Failure to notify USCIS may create confusion about when the employment ended.
- Government agencies may question whether the worker was placed in unpaid “benching” status.
Proper documentation protects the employer and avoids unnecessary disputes.
Special Considerations for H-1B1 and E-3 Workers
H-1B1 and E-3 visas are unique because they can be approved at U.S. consulates outside the United States. Some employers mistakenly assume they do not need to notify USCIS if the worker obtained their status abroad.
To avoid complications:
- Employers should send a written notice to USCIS confirming that the employment has ended.
- Keep copies of all letters, emails, and delivery confirmations.
- Maintain internal HR records showing the termination date.
Good record-keeping is critical, especially if the government later asks for evidence.
Practical Tips for HR and Employers
To reduce risk and ensure clean compliance:
- Use a standard termination checklist for foreign national employees.
- Keep copies of all communications related to the termination.
- Track visa classification and LCA expiration dates.
- Consult immigration counsel before finalizing a termination if the situation is unclear.
Consistency and documentation are key.
Conclusion
Employers who hire H-1B, H-1B1, and E-3 workers must take extra steps when ending employment. Following the three-step process—employee notice, government notification, and return travel (for H-1B)—helps protect employers from wage liability and ensures full compliance with federal requirements.
NPZ Law Group regularly assists employers with these matters. If your organization needs help navigating LCA and petition-related termination steps, our team can guide you through the process with clarity and care.
FAQs — Ending Employment for H-1B, H-1B1, and E-3 Workers
1. Do employers have to notify USCIS for H-1B1 and E-3 workers?
Yes. Even if the worker obtained status at a U.S. consulate, it is best practice to send a withdrawal notice to USCIS to clearly document the end of employment.
2. Do return transportation costs apply to all categories?
No. This requirement applies only to H-1B workers.
3. What if the employee resigns on their own?
Employers should still keep written documentation of the resignation for their records.
4. Can employers stop paying wages immediately upon termination?
Wages stop only after the employer completes all three termination steps.
5. Why does the government require these steps?
To ensure that foreign national workers are not left without pay or stranded without support, and to maintain integrity in the LCA program.
Contact Information
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.