Inthe United States, the H-1B visais the gold standard for nonimmigrant employment for specialized fields, suchas technology. The H-1B allows alien workerssignificant job opportunities and provides employers with valuable foreigntalent. 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.
Whenyou hire H-1B workers, they typically uproot their lives, as well as the livesof 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 theirstatus nearly immediately and were forced to make some very tough decisions.
Fortunately,even in today’s restrictive immigration climate, H-1B workers and employersalike are afforded more wiggle room. It’s worth examining how newly implementedregulations affect the H-1B layoff equation.
Federal Register Final Rule
OnJan. 17, 2017, a Federal Register final rule went into effect that allowsH-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, insteadof immediately losing their legal status, H-1B workers have a moment to catchtheir breath before determining their next step.
Layoffsare difficult in the best of times. When employees and their families also losethe 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 theopportunity 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.
Ifother 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-daydelay can lead to problems for any future return to the U.S.
Rumor Had It
Becauseof a longstanding rumor, there’s been some confusion regarding a presumed10-day grace period related to H-1B layoffs. Such a grace period, however,never existed. These 10days of grace applied only to those H-1B employees who remained working inthe U.S. in H-1B status through the last day of their H-1B validity, asrecorded on their I-94s.
H-1B Layoff & Bona Fide Termination
Ifyou lay off an employee who works under H-1B visa status, you are obligated to implementa bona fide termination of the employment relationship.This requires you to notify your employee (it’s in your best interest to dothis in writing) and the U.S. Citizenship and Immigration Services (via letter thatincludes the termination date). Additionally, you must withdraw the Labor Condition Application (LCA) that you originallyfiled with the U.S. Department of Labor.
Whileyour requirements as an employer are few, they are important. If you fail towrite the USCIS and to withdraw the LCA, you may be found responsible forpaying your former employee’s back wages for the pendency of the originalcontract.
Makingthe decision to lay off employees is always a tough call. When that decisioninvolves nonimmigrant H-1B employees, it becomes more difficult still. Therecent implementation of the 60-day grace period via the Federal Register FinalRule helps both employers and employees navigate this rocky terrain.