Excerpted from New Hampshire Employment Law Letter, written by attorneys at the law firm Sulloway & Hollis, P.L.L.C.

Q: I have a question that seems to have puzzled most agencies I've queried and feel like I can't get a straight answer. I have an employee I've sponsored for an H-1B visa. I'm trying to find out what my obligations would be if we needed to lay her off. I understand that in my state, I can fire employees at will. But in a recent article on www.HRHero.com, a paragraph warned employers to be careful because an employer/sponsor is responsible for the H-1B employee's wages - even during periods of lack of work - at the rate used in the H-1B application.

I'm confused on that point. Does that mean that even if I lay her off, I must pay her the same wage? Or can I lay her off, cite lack of work, and not dispute her unemployment claim? I've spoken with everyone from the U.S. Department of Labor to my state's Alien Services Office and its Bureau of Citizenship and Immigration, and I still can't get a straight answer. Any information you can give me would be greatly appreciated!

A: Some of the confusion relating to your various discussions with the different agencies you mention may arise because they perceive that you're asking about two very different situations: a temporary reduction in work or layoff as opposed to a permanent layoff or discharge. Here's some information I hope will be helpful.

An H-1B visa is an employer-sponsored, work-related visa. Consequently, the employer-employee relationship must be maintained so the employee can keep the H-1B status and legitimately remain in the United States.

H-1B employees may work full- or part-time (based on the hours of work designated in the H-1B application) and remain in status. They also may be on vacation or sick/maternity/paternity leave or otherwise "inactive" without affecting that status - so long as the employer-employee relationship exists.

Consequently, an employee could be on a temporary layoff with a recall date of January 1, for example, and still be considered an employee, maintain her H-1B status, and stay in the country so long as the records indicate that the employer-employee relationship continues to exist.

A complication arises, however, in what's called the "no-benching rule." An employer that temporarily lays off an H-1B employee or puts her in nonproductive status - with plans for the time to be unpaid or for the employee to earn reduced pay during periods of no work - must continue to pay her for the full number of hours designated in the labor condition application (LCA) and H-1B application (whether full-time or part-time hours) to comply with the H-1B requirements. For example, if an employer designates an H-1B worker as "full-time" in the H-1B petition documents, it must pay the worker full-time wages, regardless of the lack of work or hours of work. If the H-1B worker was designated as part-time, the employer must pay her for the full number of part-time hours designated on the petition.

Since you can't "bench" an H-1B employee (i.e., put her in a no-work/no-pay status), there are no likely cost savings if you designate her as temporarily laid off or on reduced-hours status. If you aren't willing to continue to pay the H-1B employee's required wages, you must end her employment. A permanent layoff or termination has entirely different and very serious ramifications for the employee (see below).

The temporary layoff situation varies dramatically from a permanent layoff or discharge of an H-1B employee but has nothing really to do with the state employment-at-will rule because immigration issues are governed by federal law.

Once a permanent layoff or discharge severs the employer-employee relationship during the term of an H-1B visa, the employee is no longer considered "in status" and may no longer legally remain in the United States. As the parties agreed in the LCA, the employer must then pay all reasonable expenses for the employee to return to her foreign address if she was laid off or fired before her H-1B visa expired. In that circumstance, she's supposed to leave the country immediately (so there would be no unemployment compensation issue).

If the employee is fired and stays to find another job, she'll be considered out of status, which will affect her ability to get an H-1B extension and/or authorization to work for another employer in that status. If you fire an H-1B employee, you also must give prompt written notice to the U.S. Citizenship and Immigration Services and request revocation of the H-1B visa.

You can help an H-1B employee maintain her status and look for a new job to which she can transfer her H-1B status, but you must maintain the employer-employee relationship and be willing to pay her the required wages during the job search.

Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from NEW HAMPSHIRE EMPLOYMENT LAW LETTER. New Hampshire Employment Law Letter should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.