With ongoing layoffs impacting companies of all sizes and industries over the last few months, these already challenging times are even more complicated for those within the tech sector with its high concentration of H-1B employees and employers. Needless to say, layoffs are incredibly stressful for all those involved. However, for H-1B workers and their employers, there are heightened responsibilities and factors to consider under U.S. immigration law when a layoff occurs.
What is an H-1B?
The H-1B nonimmigrant visa classification enables U.S. employers to employ foreign workers in “specialty occupations” in the country for a specified period of time. Employers interested in hiring a foreign worker in this classification must submit a petition to the United States Citizenship and Immigration Service (USCIS) and receive approval, except in certain circumstances, before the worker can begin employment for that employer.
To qualify for an H-1B visa, the offered position must minimally require a bachelor’s degree, or foreign equivalent, in a relevant field and the sponsored foreign worker must meet this qualification. Common H-1B positions include those in biotechnology, engineering, management, medicine, computer science, and much more.
When a U.S. employer terminates the employment of an H-1B worker, there are certain obligations an employer must satisfy under U.S. immigration law. In addition, an H-1B worker who is ends their employment, or is otherwise let go, must consider the impact this has on their visa status and their ability to remain in the U.S. as H-1B employment is tied to the employer that sponsored the visa.
Employer Considerations When Ending an H-1B Visa Holder’s Employment
- The Duty to Notify USCIS: H-1B employers must notify USCIS upon laying off an H-1B visa holder within a reasonable period of time after the termination date. This is often accomplished by mailing a formal notice to the government. Failure to complete this step can subject an employer to monetary penalties and other serious legal consequences under the law. For example, an employer who fails to notify the USCIS about an H-1B termination can face an ongoing duty to pay a laid-off employee their full wages until the USCIS is notified. Depending on the circumstances, the employer could be held accountable for months, or even years, of back pay.
- Return Transportation: An H-1B employer is obligated to offer a recently terminated H-1B employee the reasonable costs of transportation back to the employee’s last place of residence. However, the employer is not required to pay for the travel costs of the worker’s family members or personal property as USCIS considers this a private contractual issue between the H-1B visa holder and the employer.
- Additional Considerations for an H-1B Visa Holder After Being Laid Off: Once an H-1B visa holder is terminated from their position at a U.S. workplace, in general, they have a grace period of up to 60 days to act before accruing what is known as “unlawful presence.” These options can vary depending on an individual’s unique circumstances, but the most common steps include filing a “change of status” application, having another employer file an H-1B “change of employer” petition on their behalf, or departing the U.S.
Contact Our Business Immigration Attorneys Today
At T&S, we specialize in helping employers handle complex immigration compliance matters, including when and how to address these matters when a difficult situation, like a layoff, occurs.
Whether your team needs support assessing the impact of a layoff for employees or putting immigration policies in place that safeguard against compliance issues before they occur, our legal staff is available to provide your business with the counsel it needs. Please email us at info@tandslaw.com to learn more and schedule a consultation.
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