• Emily McIntosh

HR Guide: Letting go of Foreign National Employees | H-1B Layoff

Updated: Oct 12

Given the current economic conditions and the threat of an imminent recession looming, many employers are rethinking their hiring needs while others are reorganizing their workforce to eliminate redundant positions.



How are layoffs different for foreign national employees?


Unlike domestic employees, foreign national employees have to adhere to the strict timeline during which they have to find a job with another employer, change status, or risk going out of status and returning back to their home country. A foreign national’s lawful presence in the United States is often tied to their employment, and employers need to consider this very important aspect.



This article lays out the important details and timelines that HR managers or people leaders should be aware of when letting go of foreign national employees on different visa types.


Besides stating the regulations, we'll also discuss actions you can take to ensure that the outgoing foreign national employee has the best chance to stay in status and find another job in the United States.





How long can an employee stay in the U.S. after being let go?

Visa Type

Legal Stay Period from "Job Termination Date"

Employer Responsible for Employee's Return Travel?

Employer Responsible for Dependent's Return Travel?

F-1 Visa (OPT)

90 calendar days

No

No

F-1 Visa (STEM OPT)

60 calendar days

No

No

H-1B Visa

60 calendar days

Yes

No

TN Visa

0 calendar days

No

No

O-1 Visa

0 calendar days

No

No

H-1B1 Visa

0 calendar days

No

No

E-3 Visa

0 calendar days

No

No

L-1A | L-1B

0 calendar days

No

No

EAD (L-2, H-4, Asylum, Refugee, all others)

Validity of the EAD

No

No


Job Termination Date - Could be the date of termination of the job or the last date of pay. Consult immigration counsel.


Cost of Return Travel - If the employee wants to return to their home country, the employer may be responsible for paying for the one-way return ticket for the employee. This is only pertinent for employees on an H-1B visa.




Does the company need to pay for the employee's travel back to their home country?

This provision is only available to the employees on H-1B and does not include the dependents of the employees. There are added complexities about "cause" vs "no cause" termination. Therefore, it's best to consult your immigration counsel before making this decision.



Does the employer need to take action if a laid off employee wants to transfer their H-1B visa to another employer?


The H-1B visa transfer is initiated by the new employer. Thus, you do not have to take any action. However, USCIS requires that employers file an H-1B revocation when a foreign national employee is no longer employed with the organization. It's best to work with your immigration counsel to plan out when to file H-1B revocations. H-1B revocations include (1) withdrawing the Labor Condition Application with the Department of Labor, and (2) notifying USCIS that the employee is no longer employed with the employer in H-1B status.




What happens to the green card or permanent resident application of the employees who are laid off?


Pending PERM approval: If an employee is laid off while their PERM application is pending, the PERM has no standing because the underlying position no longer exists. Employers should consider withdrawing the PERM in this case.


PERM approved after termination date: If a PERM is approved after the employee's termination date, then the employee cannot use the priority date of the approved PERM.


Pending I-140 approval: If the PERM is approved after the employee departs, the PERM is still rendered useless because the underlying position no longer exists. The employer may consider withdrawing the I-140.


I-140 approved after termination date: If the I-140 is approved after the employee is laid-off, the employer should consult their immigration counsel to discuss options. An employer may let the employee know and provide them with the approved I-140 that has a cemented priority date, or the employee's place in the Green Card queue. Having an approved I-140 lets the employee extend their H-1B beyond 6 years and in addition, their dependents can obtain work authorization.


Pending I-485 approval: If the decision on the I-485 has been pending for at least 6 months (180 days) then the employee can port their I-485 application to the new employer through the submission of the I-485 Supplement J application. If the I-485 application has been pending for less than 6 months at the time of termination, the employee's new employer would likely have to file a new I-485 application.


I-485 approved after termination date: In this case the employee should have received their EAD and Green Card. However, employers should check with their immigration counsel about any potential liability issues.




How can I make the transition easy for foreign national employees?


Give longer notice period: Given the tight timelines the foreign national employees have to navigate (such as a 60 day grace period to find a new employer), employers should notify foreign national employees immediately if there are possible lay-offs. Any extra time will be invaluable for the foreign national employee to find a new employer.


Allow premium processing: If an employee is waiting on a petition decision and if Premium Processing is available for that case, allow employees to request Premium Processing. USCIS allows foreign nationals to pay for Premium Processing themselves for most of the cases. Premium Processing ensures the pending petition at USCIS is adjudicated within 14 business days, which will provide employees more certainty about their future status in the United States.




Can I hire a foreign national who was recently laid off?


Yes. You may be able to hire a foreign national and transfer their work visa (if visa is transferable). The only thing to be careful about is the time the individual has spent while unemployed. Refer to the table above and speak with your immigration counsel.











 

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.






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