Whether your business employs an international workforce or only hires domestically, there will come a time when you have to terminate a worker’s employment. No one enjoys having to fire employees, but it is a simple reality of the business world that termination or layoffs will sometimes be necessary. Perhaps your company’s finances force your hand, while other times the employment relationship simply is not a good fit.
Whatever the case may be, it is never easy to fire an employee, and it can be especially challenging when your employee is a nonimmigrant worker. Not only can it present severe repercussions for the visa status of your employee and his or her family, but there are also strict procedures you must follow that are dictated by the Immigration and Nationality Act (INA) that can vary depending on the employment visa.
The H-1B visa for speciality occupations in fields like medicine, engineering, science, and business is the most commonly utilized business immigration visa in the US, so for the purposes of this blog we will detail the employer’s responsibilities with regard to terminating the employment of an H-1B worker.
The Human Side of Firing an H-1B Employee
While not a legally binding requirement, the first thing you need to keep in mind is the impact a layoff will have on the life of the individual you are firing. A foreign employee who has come to the US for employment on an H-1B visa has uprooted themselves and oftentimes their families from everything they know and made a serious leap of faith to work for your company. By terminating this worker’s employment, he or she will lose their H-1B visa status immediately upon effective date of the termination (unless they can receive sponsorship from another company) and have to leave the country.
Do what you can to be compassionate and understanding of the employee’s difficult situation. Be forthright in communicating both the possibility of a layoff or termination, as well as when it becomes certain that the employment relationship will end. If you can, try to give the employee plenty of warning ahead of time to give them enough time to make arrangements to find a new sponsor for their visa or to plan a transition back to their home country. Such a transition is not easy, and if you spring the firing on the employee out of nowhere, you are going to make life extremely hard for that person.
The Legal Side of Firing and H-1B Employee
There are two requirements that are mandated by law when an employer wants to fire an H-1B employee. Firstly, you must notify US Citizenship and Immigration Services (USCIS) and withdraw your H-1B petition. Employers are required to pay wages to the H-1B employee as long as the petition is in effect, so you will want to withdraw your petition as soon as employment ends (and not before). You can do this by simply sending a letter to USCIS who will revoke the petition on the date you request.
Secondly, you must withdraw the Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). A failure to withdraw the LCA even if you have withdrawn the H-1B Petition can still subject you to a penalty for back wages under the LCA “agreement”.
Travel Expenses after Termination
Finally, you must offer to pay the travel costs to return the fired employee to his or her last country of residence abroad. You are not required to pay for any H-4 dependents or to ship things like furniture, etc, so generally you will only have to pay for a one-way plane ticket for one person. To avoid a lawsuit by the former employee, make sure you research and document how you came by the reimbursement that was offered.
Terminating an international employee’s position with your company can be challenging, and you should always try to proceed as humanely as possible. Particularly if the situation is complex, it will always be to your benefit to consult with an experienced business immigration attorney like those at the law firm of FordMurray. Contact us today to ensure that you are always in compliance with federal law with regard to business immigration.