When a hospital files an H-1B visa petition for a physician to work for three years, does that guarantee employment for three years? No, said the U.S. Court of Appeals for the Third Circuit. In the recent case of Edwards v. Geisinger Clinic (Third Cir., No. 11-1528, Jan. 23, 2012), the court was presented with a physician on an H-1B visa who was terminated. Dr. Edwards, a physician from the United Kingdom, brought an action for breach of employment contract and argued, among other things, that because Geisinger sought a visa for three years, it represented to USCIS a commitment to hire him for a definite term.
Dismissing Edward’s appeal of District Court’s summary judgment on the basis that employment at-will is alive and well in Pennsylvania, the court did address the immigration specific issue: “Indeed, the Immigration and Nationality Act expressly contemplates that an employer may dismiss a worker with an H-1B visa before the end of the visa’s maximum duration … Accordingly, sponsorship of an H-1B visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.”
The fact that an at-will employee has an H-1B visa does not give rise to a breach of contract claim in the event of the alien’s discharge. However, the employer is obligated to offer return transportation to the worker, to notify USCIS to withdraw the H-1B visa, and to withdraw the Labor Condition Application with the Department of Labor in order to avoid potential liability for back wages and make a clean break with the former employee.