Employee termination is an unfortunate part of business. Zulkie Partners can help your company understand its responsibilities when terminating the employment of a foreign national worker.
Terminating an employee is a difficult decision and terminating a foreign worker comes with additional challenges. Immigration law must be considered when making employment decisions regarding foreign national workers, to ensure your company’s compliance with state and federal regulations.
What are your company’s responsibilities when terminating a foreign national worker?
Requirements vary by type of visa the foreign national employee is working pursuant to:
- H-1B, H-1B1, & E-3 holders:
- Employer must provide written notice to the foreign national employee
- Employer must offer to provide the foreign national employee with the cost of reasonable transportation to the employee’s country of last residence. (This offer is not required if the employee resigns or chooses not to leave the U.S.; the employer is also not required to pay transportation for )
- Employer must provide written notice to USCIS, as a record of bona fide termination. This notification protects the company from being liable for back wages.
- Employer may choose to withdraw the certified labor condition application from the Department of Labor, to further protect the company against any potential liability for back wages.
- O-1 holders:
- Employer must offer to provide the foreign national employee with the cost of reasonable transportation to the employee’s country of last residence. (This offer is not required if the employee resigns or chooses not to leave the U.S.; the employer is also not required to pay transportation for )
- Employer must provide written notice to USCIS, as a record of bona fide termination. This notification also protects the company from being liable for back wages.
- TN and L-1 holders:
- No employee requirements regarding immigration notification or return transportation.
- E-1/E-2 holders:
- While not mandatory, it is recommended that the S. consulate that issued the E visa be notified that employment was terminated.
How soon does the terminated employee need to leave the U.S.?
Foreign national workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status may remain in the U.S. for a 60-day discretionary grace period after the date of employment termination or until the expiration of their current I-94 record – whichever comes first. This time can be used by the foreign national to seek employment with a new company, file a change of status petition, or prepare to depart the U.S.
What happens if we filed an I-140 petition on behalf of the terminated employee?
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 adverse consequences for the foreign worker.
- Requests made less than 180 days after I-140 approval
- I-140 is automatically revoked
- I-140 CANNOT be used to qualify for H-1B extensions beyond the standard six-year limit
- Priority date can be retained for future I-140 petitions
- Requests made after 180 days after I-140 approval
- I-140 is not automatically revoked
- I-140 CAN be used to qualify for H-1B extensions beyond the standard six-year limit
- Priority date can be retained for future I-140 petitions
Allowing an I-140 to reach the 180-day mark before withdrawal could be a benefit your company wants to offer the departing employee.
Can Zulkie Partners assist our foreign nationals with questions they have on employment termination?
We’d be happy to discuss any questions your foreign national employee may have regarding their options after employment termination. Please keep in mind there is a dual representation situation in immigration cases filed with USCIS where a firm represents both the petitioner (employer) and beneficiary (employee). When this occurs, the representing attorney is required to keep each party (petitioner and beneficiary) adequately informed of information related to the filed petition. You should not mention specific names of individuals unless you intend to share information with all parties.
As always, please feel free to reach out to your ZP attorney with any questions or concerns.