12/01/2008 – Immigration Policies and Procedures Related to Layoffs and Terminations

    Different visa categories have different requirements when terminating employment, and a failure to comply could result in continuing wage obligations, steep fines and other financial liability.The H-1B rules require notice to the USCIS upon termination along with other steps to effect a legally sufficient termination.

    If foreign worker will be laid off for a period of time, regulations require that they continue to be paid pursuant to the terms of the H-1B visa petition. Benching is not permitted. Filing an amended H-1B visa petition is an option to keep the employee in a part-time capacity. It is advisable to provide foreign workers who will be laid off as much advance notice as possible.

    Foreign workers can then take steps to obtain another visa status, allowing them to remain legally in the U.S. without having to spend time out of status or leaving the U.S. Most visa categories do not have a grace period. At the time of termination, the employee may be considered to be out of status.

    Often, employers learn that by keeping foreign personnel employed for a few more weeks or months, the employee can obtain immigration benefits that would take years to reprocess if the employee has to start over.

There are no products