Unique Aspects of Terminating H-1B Employees
With the unfortunate reality of COVID-19 and the layoffs occurring as a result of the economic downturn let’s take a look at considerations companies need to keep in mind when terminating an employee who holds H-1B visa status.
Please note that the information provided in this article is not intended to be taken as legal advice, and is only informational in nature to make readers aware of possible issues to discuss with counsel. No attorney-client relationship is established.
So let’s walk through the steps to help reduce the risk of an improper termination which could lead to unexpected surprises down the road for a company including back wage liability.
Three Important Actions
There are three important steps to keep in mind when ensuring that you properly terminate an H-1B employee:
Express Termination: As you would normally do you need to expressly terminate the employment relationship with the H-1B nonimmigrant.
Notify USCIS: You must also notify the immigration service of the termination so that the sponsorship can be withdrawn.
Return Transportation: Something that is often overlooked is to also provide the H-1B employee with the option to obtain reimbursement for the reasonable cost of return transportation back to their last country a foreign residence. Note that a company is not obligated to pay for any dependents and also that the return transportation that must be provided need only be economy class transportation. Also, if an H-1B status holder finds another employer, changes visa status or decides to remain in the U.S., an employer is not obligated to pay this cost. So many companies will include a time period in the termination notice. Normally 60 days or so makes sense to be notified by the employee via reimbursement request or otherwise.
Now all three of these items must be completed in order to cut off back pay liability, which is often the biggest concern in these matters.
Best Practice
The best practice here is to document all of the above to be able to clearly show that each element was satisfied and that notice was provided to the terminated employee in case you ever need to evidence this.
Additionally, it is also a good practice to provide some notice to the employee regarding how the termination will impact their current immigration status. For example, noting in writing along with the other three required elements discussed above that the employee has a 60 day grace period within which to find a new employer change visa status, or leave the U.S. This is a very difficult situation for employees, of course, so the more information that can be provided the better on many fronts. Some companies will even set up an exit interview of sorts with an immigration attorney on the topic of helping employees who are being terminated.
It might also be worth considering helping employees even more during this time by making them aware of great initiatives such as Next Act, created by Bridge.legal in partnership with Upwardly Global, Unshackled Ventures, and others. I encourage you to check it out.
Summary
Okay, so to wrap up, each company needs to have a streamlined workflow, ideally built into your existing immigration tool and platform that makes it easy and as automated as possible to expressly terminate the employee, to prepare a letter for the USCIS to verify termination, and also to clearly provide instructions for recovering the cost of return transportation.
Additionally, notice and insight into ramifications of termination, provided to the H-1B employee, is a good idea as a sign of good faith and to obviously help individuals going through this tough situation.
Next Step: Get Help Implementing Proper Immigration Policies
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Disclaimer: The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Legal standards and rules often change.