Looking for COVID-19 Resources? Bridge is here to help!
Back to Blog

Handling H-1B Layoff & Termination

Bridge Team Member

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.

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.legal or read more about latest on H-1Bs.

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.


More from the Blog

White House to Lift COVID-19 Travel Restrictions on November 8th

On Friday, the White House announced that it will lift COVID-19 travel restrictions for fully vaccinated global citizens, ending historic restrictions that have barred many from entering the United States. While this last year has been quite testing, hopefully, this news will allow loved ones and foreign workers to reunite with families.

Read Story

Optimizing Learning and Development Commitments for Immigration

As your talent goals and the candidate landscape continue to change, by implementing some of the tips for training you can stay on top of relevant changes and mitigate any erratic surprises in the immigration space. You also might consider revisiting some core immigration program metrics at regular intervals to take full advantage of the work you’ve already done by creating a policy that adds predictability to your immigration program.

Read Story

It’s Time to Level-Up Your Immigration Stakeholder Training

Programmatically managing immigration and training all relevant stakeholders can help reduce the likelihood of errors and also maximize investments across the organization. By offering stakeholder training you can mitigate the chance of one point of failure if someone needs to take time off or moves teams suddenly. Training also allows for a more consistent delivery of the company immigration policy from Talent teams and hiring managers to People Operations in order to standardize expectations for the candidates or employees.

Read Story