Employers that use workers eligible under H-1B non-immigrant visas agree that in the event of termination of employment, they will offer the employee payment for transportation home in certain circumstances. Earlier this month, the federal Administrative Review Board (ARB) concluded that this travel payment obligation does not apply if the terminated H-1B worker attempts to stay in the U.S. for a period following termination.

In Vinaygam v. Cronous Solutions, Inc., the employer terminated the plaintiff, paid her final wages, and informed USCIS of the termination. The plaintiff stayed in the U.S. for the remainder of the year, unsuccessfully applying for new H-1B and tourist visas. When these attempts were unsuccessful, she filed a claim against her former employer, alleging that the travel payment obligation extends until the end of the period of authorized work under the original H-1B visa.

The ARB disagreed, affirming the federal Administrative Law Judge’s dismissal of the claim on summary judgment. The travel payment obligation can end based on the voluntary actions of the H-1B employee following separation. Even though the employer never initially offered to pay travel expenses, the employee’s decision to remain in the U.S. without a valid visa terminated its liability for travel costs. Employers using workers on H-1B visas should carefully document their initial offer to pay return travel costs, as well as the employee’s response or lack of response to this initial offer.