Employers frequently ask, “what obligation does an employer have when it terminates a foreign national employee,” and “what options are available to the foreign national employee if she is terminated.” More recently this question is revised somewhat, and the word “furloughed” is substituted for “terminated.” Let’s look at immigration law as it applies to these situations.
In the broader context (that is non-H-1B visa holders) the foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national nonimmigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common nonimmigrant work visa, H-1B, is used for an foreign national “who is coming to perform services in a specialty occupation.” L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge. E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers. O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.
Nonimmigrant work visas are generally issued for the specific employment with a particular employer. A foreign employee is authorized to remain in the United States as long as they are employed with the particular employer noted in the visa application. If the foreign employees are laid off or terminated, they immediately lose their visa status, and must pursue one of options outlined below.
The immigration laws define a “lay off” as an action taken by an employer to cause the loss of a worker’s employment. A lay off does not include:
- Loss of employment for inadequate performance;
- A loss of employment for violation of workplace rules;
- Voluntary departure or retirement;
- The expiration of an employment grant or contract.
When downsizing, as a company laying off foreign workers, the company must comply with the affirmative duties under immigration law with respect to those foreign workers. For most employment-related visa types, the employer has an affirmative responsibility to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa, when terminating a foreign worker’s employment. The employer’s payment obligation under the immigration law ends when there is a bona-fide termination of employment AND the employer also notifies the USCIS. The notice to the Immigration Office fulfills the requirements for bona-fide termination of employment
These affirmative responsibilities are particularly important because employers that do not comply with these obligations violate the immigration rules and are subject to various penalties, including back wages. We include some brief explanations of the affirmative responsibilities employers incur when laying off foreign national employees:
Furloughing H-1B Foreign Workers
Employers furloughing foreign workers need to first ascertain what legal status they are in. If the foreign worker is on an H-1B visa, furloughing in the foreign worker does NOT end the requirement to pay the worker’s salary at the same level as before the furlough. A furlough, of requested by the employee is permissible if it is for legitimate, personal related reasons (birth of a baby, health issues, etc), but not permissible if the employer forces the employee to request it. An employer who wishes to reduce or end the salary requirement of an H-1B must either terminate that H-1B employee, and notify USCIS of the termination, or file an amended H-1B petition with the USCIS to reduce the employee to part-time status. When the employer wants the H-1B employee to return to full-time status, another H-1B amendment must be filed (yes, it’s crazy!). So, basically, there is no such thing as a Furlough for an H-1B visa holder, because of the mandatory salary requirements.
Laying Off H-1B Foreign Workers
If an employer does, in fact, terminate the employment of an H-1B workers, the employer must:
- Offer to provide the H-1B workers return transportation to their home country at the employer’s expense. This is an airfare cost only, and only for the foreign national employee. It is not for his spouse, children, home furnishing or dog; AND
- Notify the USCIS of the termination of foreign workers’ employment;
Laying Off Other Nonimmigrant Foreign Workers
The employer must also notify the USCIS of the termination of foreign workers’ employment. But there is no requirement of a notification to USCIS in the case of a furlough of one of these other visa holding employees, as there is no mandatory wage requirement for them. The furlough presumes that the employer intends to rehire the employee, as soon as they are able too, and this allows the employee to maintain their lawful status.
Options for the Terminated Foreign Worker
The employer should also ensure that the foreign national worker understands his or her options upon termination. These are the options that a foreign national worker upon termination:
The employee can leave the United States immediately. There is now a 60-day grace period for virtually all nonimmigrant workers. This was a change instituted under President Obama. This means the terminated foreign workers have 60 days to remain in the United States, lawfully. During these 60 days they can simply make plans to leave during that time.
Alternatively, these foreign workers can also:
- File for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.). This application for change of status to visitor should occur prior to the end of the 60 days. This request to remain can be for up to six (6) months, and during the time the extension is pending, the individual is validly and lawfully in the United States.
- File to change employers and remain in that visa status. This means, obviously, that the employee must find an offer of employment from another employer (or return to work for the same employer). The same process would have to be used that was originally used to obtain the current nonimmigrant status for the employee (although an H-1B visa holder would NOT have to back through the visa lottery). The employee must also file this change of employer petition while still in lawful status (during the time they are in the 60-day period OR during the time they are here under a pending B-2 extension).
- File to enroll in or return to school. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1). Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPR). Again, this change of status petition must be filed while the employee is still under the initial 60-day grace period, OR during the time the employee has a B-2 change of status petition pending.
At least one employer client is offering to file a B-2 change/extension of status for their employees to ensure that they do not have to leave the US by the end of 60 days, and they are betting on being able to bring those employees back on board and reopening their operations within that 60 day period.
An employer terminating or furloughing foreign employees should consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated. Layoffs and terminations are difficult for all parties involved. Properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal immigration laws. If you would like further information about specific case scenarios or situations, please call our office or email us at firstname.lastname@example.org to speak to one of experienced immigration attorneys.