Terminating an employee is always a difficult decision. When terminating an immigrant employee, employers must ensure that they are in accordance with state and federal law due to the distinct challenges and consequences that must be addressed. An employer should consult with both their employment lawyer and immigration attorney before taking any 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)
- Withdrawal of the labor condition application (when possible).
The cost of reasonable transportation to the employee’s country of last residence must be offered to H-1B and E-3 immigrants if the employer terminates the employee. Transport costs for dependents are not expected to be covered by the employer. If the employee resigns or chooses not to leave the United States, this offer is not necessary. The employer is still responsible for unpaid wages up until a legitimate termination.
Termination of O-1 employees requires:
- Written notice to USCIS
- 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 United States consulate that issued the E visa be notified that employment was terminated.
Regulations give immigrants 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. If the foreign immigrant 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 the grace period availability, the immigrant may remain in the United States
without working and will not be considered out of status. The immigrant 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.
Note: The grace period is especially helpful for individuals who are eligible for H-1B portability, which permits the immigrant to begin working as soon as an H-1B change of employer petition is filled.
There is no requirement that an employer withdraw an approved I-140 petition after a foreign immigrant’s employment is terminated. If the withdrawal is desired, consider the timing of that request carefully, as it may have adverse consequences for the foreign immigrant. A withdrawal request made before 180 days have passed from approval will automatically revoke the petition. The immigrant 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 immigrant 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 (or do not want) to offer the departing employee.
There is a dual representation situation in immigration cases where a firm represents both the petitioner (employer) and worker (employee). When this occurs, the attorney is required to keep each party (petitioner and beneficiary) adequately informed of any information related to that representation. Any information revealed by either party during this representation cannot be kept confidential from the other party.
If looking for guidance related to the termination of a foreign immigrant, keep in mind that you should not mention specific names of individuals unless you intend to share this information with all parties.
