H1-B 雇佣关系的终止
2011-06-20
H-1B Employer Obligations
H1-B 雇主的责任
Liability for Reasonable Costs of Return Transportation
承担返程交通费的义务
• If an employer terminates an H1-B employee before the end of that employee’s period of authorized stay, the employer is liable for the “reasonable costs” of return transportation for the employee to his or her last country of residence.
• Immigration statutes and regulations suggest that the employer’s liability is limited to the reasonable cost of physically returning the H-1B employee, and does not extend to the cost of relocating family members or property.
• If a terminated H-1B employee believes that an employer is not complying with this obligation, he or she may file a complaint with United States Citizenship and Immigration Services (“USCIS”). USCIS policy regarding enforcement of this obligation, however, is unclear, and USCIS lacks statutory authority and a regulatory mechanism to enforce this obligation.
• Employers should be aware that the statute does not impose an obligation to provide the costs of return transportation to an employee who elects not to depart the United States; however, the Department of Labor considers the payment of these costs to be a normal incident of a “bona fide termination.”
• Employers may wish to provide terminated H-1B employees with a sum approximating the employee’s reasonable return costs and obtain a release from the employee. Alternatively, the employer may be able to satisfy the return transportation requirement by offering to provide a ticket for the employee within a reasonable period after the date of termination through the employer’s travel agent. This approach would provide evidence that the employer made a good-faith effort to satisfy its obligation, while avoiding a windfall to an employee who elects to remain in the United States.
• A terminated employee may seek to enforce the employer’s obligation in state court; however, it is unclear whether such a suit could succeed.
• Employers should retain records of compliance with this obligation.
根据美国移民法规定, 如果一个雇主要在H1-B 授权期限到期前,终止与一个H1-B雇员的雇佣关系, 那么该雇主就有责任承担该雇员返回其上一个长久居住国的交通费。但是如果该雇员并没有打算离开美国, 根据移民法相关规定雇主可以不用支付这笔费用。尽管如此，美国劳工部仍然会把支付这笔返程交通费用的行为当作是构成善意终止H1-B雇佣关系的一个要件.
USCIS Notification of Termination
• Regulations require an H-1B employer to notify USCIS “immediately” of “any material changes in the terms and conditions of employment” affecting an H-1B employee. USCIS policy is that a termination is such a “material change.” Employers may satisfy this notification obligation by sending a letter explaining the change or termination to USCIS office that approved the petition.
• Employers should be aware that there is no sanction provided in the USCIS regulations for failing to make timely notification of an H-1B worker’s termination.
• After receipt of a letter from an H-1B employer indicating that the H-1B employee is no longer employed by the employer, USCIS will respond with a notice revoking that employee’s H-1B petition.
• The eventual revocation of the H-1B petition may cause a dilemma for an H-1B employee, who may have remained in the United States to seek other employment, as discussed below.
• Employers should consider informing terminated employees of the employer’s obligation to notify USCIS of the termination and of the eventual revocation of the employee’s H-1B petition that will result.
• Employers should retain records of compliance with this obligation.
移民法规定, 当雇佣关系有任何实质性的改变, 并且这种改变可以影响到H1-B 雇员在美的合法身份时, H1-B雇主应该立即通知美国移民局. 比如说,直接终止雇佣关系就是一个所谓的实质性改变. 当雇主终止与一个H1-B雇员的雇佣关系时, 该雇员的H1-B身份也就随即失效. 因此雇主有责任立即通知移民局这一实质性改变, 移民局不接受其他拖延申报的理由.。基于这种情况, 雇主和雇员就应该协调他们之间的利益关系.在正式终止雇佣关系前，雇主有责任通知雇员将要与其解除雇佣关系；而雇员也可以有相应的时间寻求其他在美的合法身份.
Department of Labor Implications
• Employers should be aware that the Department of Labor (DOL) has issued regulations preventing the “benching” of H-1B workers—that is, underpaying or not paying an employee who is not engaged on a matter that will produce revenue for the employer. These regulations impose a requirement that employees in nonproductive status or otherwise temporarily laid off “due to the decision of the employer” continue to receive their normal wages. This requirement ceases once there is a “bona fide” termination of employment.
• DOL regulations tie the obligation to pay an employee until “bona fide” termination to the obligation to inform USCIS of an H-1B employee’s termination. The DOL’s enforcement position has been that any evidence of a “bona fide” termination, such as written notice to the employee, will be sufficient to end the employer’s wage obligation. A recent decision of the DOL’s Administrative Review Board, however, held that an employer’s obligation to pay the offered salary continues up until the date the employer sends notice of termination to USCIS.
• While USCIS’s position is that an H-1B petition is valid until revoked, so that a terminated H-1B employee whose petition has not been revoked could later begin work for the same employer immediately and would not need a new H-1B petition, the Department of Labor’s position is that failing to file a new petition means no “bona fide” termination occurred, so that the employer is liable for wages during the entire period between the “termination” and “re-hire.”
• Employers should maintain careful records of an H-1B employee’s termination, and immediately notify USCIS of the termination, in the event that the Department of Labor questions when the employee actually was terminated.
美国劳工部关于H1-B 工作签证的“Benching Policy”。我们可以把这个政策形象的直译为“板凳政策”。在美国，有很多公司是以阶段性服务或者一定时期的合同服务为其经营的主要内容。因此，这些公司经常会碰到以下情况。当这些公司没有工程项目可以做的时候，公司里的某个或某些H1-B雇员也就会处于相对的空闲阶段。在遇到这种情况时，很多公司都会停止发放H1-B雇员的正常薪水一直到他们回复正常工作。 其实这样的行为侵害了H1-B雇员的合法权益，因为美国劳工部在“板凳政策”中明确规定， 只要H1-B雇员和雇主间还存在合法正常的雇佣关系，不管H-1B 雇员当下阶段是否有工作可做，雇主都要给其发放正常的工资。
Consequences for the H-1B Employee
Maintenance of Status
• Contrary to popular belief, there is no “10-day,” “30-day” or other grace period for terminated employees holding H-1B status. Once the employment relationship terminates, the H-1B employee is out of status. While USCIS has proposed a 60-day period within which an H-1B worker may seek new employment, that period remains only a proposal.
• USCIS policy is that periods during which an H-1B employee receives severance payments, or remains on the employer’s payroll without reporting for work, are not periods of valid status for an H-1B nonimmigrant.
• Technically, H-1B employees who remain in the United States after termination of their H-1B employment without changing their status are in violation of their status, and persons in violation of their status are not allowed to change, amend or extend their status. In deciding whether to approve a change, amendment or extension of status for any out-of-status nonimmigrant, however, USCIS may exercise discretion on a case-by-case basis to grant the extension, change or amendment of status in spite of the failure to maintain status. The longer the time out of status, the less likely USCIS will be to approve the change, extension or amendment of status. If the period out of status is very short (10 days or less), a change, extension or amendment of status will usually be approved. USCIS offices, however, have increasingly refused to exercise discretion in favor of laid-off H-1B workers, unless the gap in status is very short.
• Terminated H-1B employees should be aware that time is not on their side. If the employee has plans to have another H-1B petition filed on his or her behalf, or to change to another nonimmigrant status, those plans should be implemented as quickly as possible.
现在很多H1-B雇员普遍认为，在雇主终止他们之间的雇佣关系后，他们仍然有10天或者30天的延续时间合法持有他们H1-B 身份， 其实不然， 一旦雇佣关系被终止，雇员的H1-B身份便即刻失效。技术上来说， 如果身份实效，当事人就必须离开美国，当事人可以寻找新的雇主或者其他身份，并通过在海外调整来获得新的身份。如果当事人在失去身份后没有离开并很快又找的新的雇主申请新的H1-B，一般说来，不超过十天的话，你新的申请还是比较容易被批准。但是如果非法逗留超过十天或者更长时间，那么新的申请就会很难被批准。对于很多H1-B的雇员来说，这个情况比较苛刻，不过美国移民局已经在尝试设立一个“60天”延续的政策，给H1-B身份失效的人有一定的时间去寻求新的雇主或其他在美的合法身份。
Difficulty in Taking Advantage of the Portability Rules
• The portability rules allow an individual in H-1B status to begin work for a new H-1B employer as soon as the new employer files with USCIS a non-frivolous petition to extend and amend the H-1B employee’s status to reflect the new employer, if certain conditions are met. One condition is that the new petition must be filed before the “date of expiration of the period of stay.”
• USCIS has not made clear when the expiration of the period of stay occurs, though the same language has been interpreted in other contexts to refer only to the expiration date of the nonimmigrant’s Form I-94, rather than to when the nonimmigrant fails to maintain status.
• The dilemma for the terminated H-1B employee is that, if the period of stay expires on the last day of employment, the employee is left with little or no time to coordinate the filing of a new petition by a new employer. While the legacy INS indicated it would propose a grace period to allow terminated H-1B workers to take advantage of the portability rules for a particular period of time (such as 60 days), there has been little activity from the Department of Homeland Security on the issue so far.
现在的“Portability Rules”规定：对于那些基于H1-B终止雇佣关系而失去身份的雇员，他们在美合法逗留的过期时间与雇佣关系终止的时间实际上是同一天，这就说，如果雇佣关系终止，那雇员将没有多余的时间去申请一个基于新雇主名义下的新H1-B签证。这一规则对于很多H1-B申请者来说似乎比较的苛刻，不过美国移民局指出，他们现在也在计划改变现有政策，给那些基于雇佣关系终止而失去H-1B身份的人一个合理的时间，比如说60天或者移民局认为合理的一段时间，让这些原H1-B身份持有者去调整或寻求在美的合法身份。除了上述移民局所作的努力，移民法中也有一条规则可以为持H1-B身份的雇员提供一些帮助。移民法中的“Portability Rules”规定：在符合其他H1-B申请的条件下，新雇主一旦向美国移民局递交一份non-frivolous申请来者修改一个新雇员原有的H1-B身份，该雇员马上可以开始为新雇主工作，而并不用等到移民局的正式通知发放下来。
Conclusion
There are many issues to consider regarding the termination of H-1B employees. This Update is a general treatment of these issues and challenges. Each individual termination will present unique circumstances that may require more detailed analysis. As individual terminations are carried out, both employers and employees should keep these general issues and challenges in mind and should consult with immigration counsel for an individual determination of their options.
对于雇佣关系终止而影响H1-B签证这一情况其实还有很多值得考虑的问题。更新中所提及的办法只是针对一些普遍发生的情况。每一个雇佣关系终止问题都会呈现不同的情况，需要更多细致的分析。 作为与雇佣关系终止程序息息相关的人， 不论是雇主还是雇员都应该对这一个问题有个大致的了解，并且应该与移民专家或者顾问有更多的沟通，以便找到最适合自身情况的解决办法。