In the United States, the H-1B visa is the gold standard for nonimmigrant employment for specialized fields, such as technology. The H-1B allows alien workers significant job opportunities and provides employers with valuable foreign talent. If you need to lay off an H-1B employee, it’s never an easy decision –but layoffs happen, and you need to know the ropes.
When you hire H-1B workers, they typically uproot their lives, as well as the lives of their families, for the opportunity to work for your company. In the past, these workers had very little recourse if they were laid off. They lost their status nearly immediately and were forced to make some very tough decisions.
Fortunately, even in today’s restrictive immigration climate, H-1B workers and employers alike are afforded more wiggle room. It’s worth examining how newly implemented regulations affect the H-1B layoff equation.
Federal Register Final Rule
On Jan. 17, 2017, a Federal Register final rule went into effect that allows H-1B workers, as well as workers with several other classes of high-skill visas, a 60-day grace period after a layoff or other employment termination. Now, instead of immediately losing their legal status, H-1B workers have a moment to catch their breath before determining their next step.
Layoffs are difficult in the best of times. When employees and their families also lose the status necessary to remain in the country, however, the situation can be dire.This recent allotment of 60 days allows a newly laid-off H-1B worker the opportunity to find a new employer (who will need to file a new H-1B petition) and file an application to change his or her status, or to leave the U.S.before losing status and being found in violation.
If other arrangements haven’t been made, H-1B workers lose their status after the60-day grace period, and they must leave the U.S. immediately. Even a one-day delay can lead to problems for any future return to the U.S.
Rumor Had It
Because of a longstanding rumor, there’s been some confusion regarding a presumed 10-day grace period related to H-1B layoffs. Such a grace period, however, never existed. These 10 days of grace applied only to those H-1B employees who remained working in the U.S. in H-1B status through the last day of their H-1B validity, as recorded on their I-94s.
H-1B Layoff & Bona Fide Termination
If you lay off an employee who works under H-1B visa status, you are obligated to implement a bona fide termination of the employment relationship.This requires you to notify your employee (it’s in your best interest to do this in writing) and the U.S. Citizenship and Immigration Services (via letter that includes the termination date). Additionally, you must withdraw the Labor Condition Application (LCA) that you originally filed with the U.S. Department of Labor.
While your requirements as an employer are few, they are important. If you fail to write the USCIS and to withdraw the LCA, you may be found responsible for paying your former employee’s back wages for the pendency of the original contract.
Making the decision to lay off employees is always a tough call. When that decision involves nonimmigrant H-1B employees, it becomes more difficult still. The recent implementation of the 60-day grace period via the Federal Register FinalRule helps both employers and employees navigate this rocky terrain.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.