What Your Employer Is Required to Do When They Lay You Off on H-1B

Your H-1B layoff triggers real legal duties for your employer — notice, wage obligations, and USCIS withdrawal. Here's what must happen next.

Your manager delivers the news, HR sends a termination email, and your badge stops working by lunch. What almost never gets explained in that meeting is that your employer has its own legal to-do list the moment it lays off an H-1B worker — and how well it executes that list affects your paycheck, your immigration record, and how clean your file looks to your next sponsor.

At minimum, a compliant H-1B layoff requires your employer to give you written notice of termination, notify USCIS that the H-1B petition should be withdrawn, and offer to pay your reasonable transportation home if you choose to leave the US. Until all three happen, the law treats the employment relationship as not fully wound down for wage purposes — which is worth understanding before you assume every clock has already started.

The three-part test for a real termination

USCIS and the Department of Labor don't treat "you were walked out of the building" as automatically ending your H-1B status or your employer's obligations. The standard that grew out of the Administrative Appeals Office decision in Amtel Group of Florida, Inc. v. Yongmahapakorn and the notification requirement at 8 CFR 214.2(h)(4)(iii)(E) breaks a genuine, "bona fide" termination into three parts:

1. Written notice to you. Your employer must clearly tell you, in writing, that your employment has ended and the date it ended.
2. Notice to USCIS. Your employer (usually through its immigration counsel) must formally notify USCIS that it is withdrawing the H-1B petition filed on your behalf, so the petition is no longer active.
3. Offer of return transportation. Your employer must offer to pay the reasonable cost of your transportation to your last foreign residence, if you decide to leave the United States.

Skip any one of these three, and your employer has not completed a bona fide termination under the regulations — even if your direct deposits have already stopped and your laptop has been collected.

Why this matters more than it sounds

This isn't just procedural housekeeping on your former employer's side. Two things that matter directly to you depend on whether the termination was actually completed correctly.

The first is your wage record. The Labor Condition Application (LCA) your employer certified with the Department of Labor commits it to paying the required wage for your role for as long as you are employed in H-1B status under that petition. That obligation does not evaporate the moment you're told not to come back — under DOL guidance, it continues until there has been a bona fide termination. If your employer never files the USCIS withdrawal, there's a real argument that the wage obligation is still technically running.

The second is your record with USCIS. An H-1B petition that was never formally withdrawn can sit as an open filing tied to your name, which can create avoidable confusion later — for example, if a new employer's attorney is trying to confirm your H-1B history for a transfer petition. A clean, documented withdrawal keeps that history simple.

What your employer must do vs. what it doesn't have to do

LCA compliance is where employers most often get sloppy

The Labor Condition Application is the wage-and-working-conditions attestation that made your H-1B possible in the first place, and it's the piece most likely to get mishandled during a layoff. Because the wage obligation legally continues until a bona fide termination is complete, an employer that quietly stops paying you without ever notifying USCIS is arguably still on the hook for the required wage in the interim.

In practice, most workers never pursue this — but if you believe you were shorted, the enforcement path runs through the Department of Labor's Wage and Hour Division, which investigates LCA violations and can order back wages. Our guide to filing a DOL wage complaint against an H-1B employer walks through that process in more detail. This is a fact-specific question about your own pay records and dates, so treat it as a starting point for a conversation with an employment or immigration attorney, not a substitute for one.

H-1B petition withdrawal, explained

When people say an employer "withdrew" an H-1B, they mean the employer's immigration counsel sent USCIS formal notice that the I-129 petition filed on your behalf should be terminated. There is no USCIS filing fee for a withdrawal, and it is a routine, expected step after any layoff — it does not create a negative mark on your immigration record or your former employer's standing with USCIS.

What it does do is close the loop. Once USCIS processes the withdrawal, the petition is no longer active, and your work authorization tied to that specific employer ends. If your next step is having a new employer file a transfer petition on your behalf, the mechanics of that filing (and what does or doesn't carry over from your prior H-1B) are covered in our guide to withdrawing and refiling an H-1B petition.

If you're not sure whether your former employer actually filed the withdrawal, ask HR or the immigration attorney who handled your case for written confirmation. Don't assume it happened just because the paychecks stopped.

A realistic timeline for a compliant layoff

1. Day of layoff — HR delivers written notice of termination. Email counts, but keep it and note the effective date.
2. Same week — Your employer's counsel prepares and files the USCIS withdrawal request for your H-1B petition.
3. Same week — HR or counsel should offer, in writing, to cover your reasonable transportation home if you plan to leave the US. If it isn't offered, ask for it in writing.
4. From the layoff date — Your grace period generally begins running based on when your qualifying employment actually ended, regardless of how quickly the paperwork catches up. During this window you are not authorized to work, but you can search for new sponsorship, prepare a change of status, or plan your departure. The full mechanics are in our 60-day grace period guide.
5. Before you sign anything — If you're offered a severance agreement with a release of claims, confirm the USCIS withdrawal actually happened and review any unpaid wage or PTO questions with an attorney before signing.

Layoffs inside a reorg, sale, or acquisition

Layoffs sometimes arrive bundled inside a corporate restructuring rather than a standalone reduction in force, and that changes some of the mechanics — including questions about whether an acquiring company becomes a "successor in interest" for LCA and H-1B purposes. If your layoff is tied to a merger, acquisition, or internal reorg rather than a straightforward RIF, see our guide to what happens to your H-1B status during a reorg or acquisition for how that scenario differs.

If you already have an approved or pending I-140

A layoff hits differently if you already have an approved I-140 immigrant petition, since AC21 portability provisions can open options that aren't available to workers earlier in the process. Those options depend heavily on how long your I-140 has been approved and your specific priority date, so they're not something to work out from a general guide. Our layoff and AC21 strategy guide for workers with a pending or approved I-140 goes through the mechanics, but the right move for your specific case is a conversation with a licensed immigration attorney, not a self-diagnosis.

Common mistakes

• Assuming "no more paychecks" means you're officially terminated. Legally, termination isn't complete until all three bona fide-termination steps happen — get the written notice and confirm the USCIS withdrawal separately.
• Not getting the termination date in writing. Verbal conversations are hard to reconstruct later if a dispute comes up about your wage obligation or your grace period.
• Signing a severance release without asking whether USCIS was notified. Confirm the withdrawal was filed before you sign away your right to raise wage questions later.
• Assuming the transportation-home benefit covers dependents or a delayed trip. It's specific to you, the H-1B worker, and to a genuine departure from the US, not an open-ended travel allowance.
• Waiting on your employer's paperwork before you start your own timeline. Your grace period runs from when your employment actually ended, not from when the withdrawal is filed — don't burn days assuming otherwise.
• Treating "we'll get to it" as good enough. Ask for written confirmation of the withdrawal and keep it with your other H-1B records.

Frequently asked questions

What is a bona fide termination under H-1B rules? It is the legal standard USCIS and DOL use to decide whether your employment has actually ended for immigration purposes. Under the framework that grew out of Amtel Group of Florida v. INS and 8 CFR 214.2(h)(4)(iii)(E), it requires written notice of termination to you, notice to USCIS withdrawing the H-1B petition, and an offer to pay your reasonable return transportation home if you leave the US. Until all three happen, you have not been bona fide terminated even if your paychecks have stopped.

Is my employer required to pay for my flight home after an H-1B layoff? Your employer must offer to pay the reasonable cost of your transportation to your last foreign residence if you choose to leave the United States after the layoff. This obligation covers only you, the H-1B worker, not H-4 dependents, and it does not require your employer to fund a job search elsewhere in the US. If your employer never makes the offer, raise it in writing and consult an immigration attorney about your options.

Does my employer have to withdraw my H-1B petition with USCIS? Yes. Federal regulations require the petitioning employer to notify USCIS when your H-1B employment ends before the petition's validity period expires, and that notice is one of the three steps needed for a bona fide termination. There is no USCIS fee for an employer to withdraw a petition. If you are unsure whether the withdrawal was actually filed, ask your former employer's HR or immigration counsel for written confirmation.

What happens if my employer does not properly terminate my H-1B status? If your employer skips notifying USCIS or never offers return transportation, the bona fide termination is incomplete, and the wage obligation created by the Labor Condition Application can arguably continue to run. Workers who believe they are owed unpaid wages under an LCA can file a complaint with the Department of Labor's Wage and Hour Division. This is a fact-specific question, so involve an employment or immigration attorney before assuming you are owed back wages.

Does my employer's paperwork affect my 60-day grace period? Your grace period is tied to when your qualifying H-1B employment actually ends, not to when your employer finishes its paperwork, so do not wait for confirmation of a USCIS withdrawal before you start acting on your own timeline. At the same time, a sloppy or undocumented termination can create confusion later about exactly when your authorized employment stopped, which is one more reason to get the termination date and every related notice in writing.

An H-1B layoff is stressful enough without having to decode which parts of the process are your employer's responsibility and which parts are yours to move on immediately. If you're navigating a layoff and need help getting your job search moving inside your grace period, F1Jobs works with international candidates on exactly this timeline.