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What Employers Need to Know if Laying Off Foreign National Employees

Written By The Shapiro Law Group on September 19, 2014

In today’s tenuous economic climate – and any time, for that matter – lay-offs are, unfortunately, an unavoidable part of business operations.

As we reported last month, lay-offs are particularly stressful and challenging for foreign nationals who are in the U.S. under a work visa. If an employee with an H-1B visa is given advance notice of the lay-off, he or she can file a Form I-129 requesting a change in employers without being required to leave the U.S. If, on the other hand, an H-1B visa holder is laid-off without advance notice, the terminated H-1B nonimmigrant is not allowed to transfer the visa to another employer and must return to his or her home country pending processing of a new application (unless he or she qualifies for certain discretionary exceptions).

Like employees, employers who hire foreign nationals often have a number of questions about their visa obligations in connection with lay-offs and terminations that impact H-1B visa holders and other employers in the country under a work visa.

First, employers should make sure to provide a clear notification of the employee’s termination, preferably in writing. Once the termination notification has been made, the employers must notify United States Citizenship and Immigration Services (USICS) of the H-1B visa lay-off or termination. In fact, U.S. employers are required to notify USCIS of any “material change” to the terms and conditions of an approved H-1B petition and not just terminations. Employers should include a certified letter to the USCIS service center that approved the H-1B visa, indicating the date of termination and requesting a revocation of the H-1B petition. Employers should make sure to notify USCIS of the lay-off as soon as the termination is effective in order to avoid any claims for unpaid wages for the period after the employee’s termination until the end of the employment contract.

Employers must also notify the U.S. Department of Labor of the termination and may also want to inform the antifraud division of the U.S. consulate in which the visa stamp was issued

Since the employee’s legal status in the U.S. is lost as soon as the termination is effective, the employer should provide reasonable costs of transportation for the employee to return to his or her home country. If the employee refuses the offered transportation, the employer should request that the employee sign a statement indicating that he or she declines acceptance of transportation costs.

Throughout the entire process, it is important that the employer document all steps taken in connection with the termination since the failure to comply with applicable legal procedures could subject the employer to potential employment discrimination claims or breach of employment contract claims.

Contact an Employment Immigration Lawyer

If you are an employer who employs foreign nationals under the H-1B visa or other work visa, it is highly recommended that you consult with an immigration lawyer before laying-off or terminating a foreign national employee. The employment immigration lawyers at Shapiro Law Group are dedicated to helping employers manage their work visa and other employment immigration needs so that they can efficiently run their business.

Contact us online or call our office at (847) 564-0712 to schedule a consultation with one of our experienced U.S. immigration lawyers.