Considerations When Terminating a Foreign Worker
- Terminating an employee is always a difficult decision. Terminating a foreign worker has additional challenges and consequences that must be considered, and employers must ensure they comply with state and federal law. An employer should consult with their immigration lawyer and possibly an employment lawyer before taking action. Termination of H-1B, H-1B1, and E-3 employees requires:
- written notice to the employee;
- written notice to USCIS (if the petition was filed with USCIS), and possible withdrawal of the labor condition application (LCA).
- An offer to pay the cost of reasonable transportation to the employee’s country of last residence for H-1B and E-3 workers if the employer terminates the employee. The employer is not required to pay transportation for dependents. This offer is not required if the employee resigns or chooses not to leave the United States.
These three steps constitute a “bona fide termination.” The employer continues to be liable for wages until there is a bona fide termination.
Termination of O-1 employees requires:
- written notice to USCIS and
- offer to pay the cost of reasonable transportation to the country of last residence.
Termination of TN and L-1 employees:
There is no specific immigration notification requirement or return transportation requirement.
Termination of E-1/E-2 employee:
While not mandatory, it is recommended that the U.S. consulate that issued the E visa be notified that employment was terminated.
Regulations give workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status a grace period of up to 60 days after the employment is terminated or until the end of the currently authorized stay, whichever is shorter. In other words, if the foreign worker is terminated on 1/1/22 and their I-94 expires 1/15/22, then their grace period expires 1/15/22 (end of the currently authorized stay). If the foreign worker is terminated on 1/1/22 and their I-94 expires 12/15/22, then their grace period expires 3/2/22 (60 days from 1/1/22).
If terminated with grace period availability, the worker may remain in the United States without working and will not be considered out of status. The worker can use this time to prepare to depart, find another employer that will file a petition within the grace period or change to another status. The grace period is especially helpful for individuals who are eligible for H-1B portability, which permits the worker to begin working as soon as an H-1B portability petition is filed.
There is no requirement that an employer withdraw an approved I-140 petition after a foreign worker’s employment is terminated. If withdrawal is desired, consider the timing of that request carefully, as it may have severe adverse consequences for the foreign worker. A withdrawal request made before 180 days have passed from approval will automatically revoke the petition. The worker will retain the priority date for future I-140 petitions but will be unable to rely on the I-140 approval to qualify for H-1B extensions beyond the standard six-year limit. Submission of a withdrawal request after 180 days have passed from approval will not result in automatic revocation of the I-140, and the terminated worker will be entitled to I-140 approval benefits, including continued eligibility for H-1B extensions beyond the six-year limit.
As a sponsoring employer, allowing an I-140 to reach the 180-day mark before withdrawal could be a benefit you want to offer the departing employee.
Please contact our office to discuss the immigration requirements when terminating a foreign worker in order to maintain compliance.
By: Emily Neumann
Emily Neumann is Managing Partner at Reddy & Neumann, P.C. with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration. She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily is a frequent speaker and has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.