Category immigration to US

By Wang Law LLC

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.

Terminating an employee is never easy, and it can be especially challenging when the employee is a nonimmigrant worker. Not only can it present severe repercussions for the visa status of your employee and their 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 specialty occupations in fields like medicine, engineering, science, and business is the most commonly utilized business immigration visa in the US. For this reason, we will detail the employer’s responsibilities regarding 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, they will lose their H-1B visa status immediately upon the 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 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 an 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 their 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. Contact us today to ensure that you are always in compliance with federal law regarding business immigration.

Please contact our immigration attorney to assist with this process.

Summary of Steps to Terminate an H-1B Employee

1. Notify the Employee

   – Provide clear written notice that the employment relationship has ended. Keep a record of all correspondence with the employee, including the dates of communication.

2. Notify USCIS

   – Send a letter to the USCIS service center where the H-1B petition was originally filed. The letter should state the termination date but not the reason for it. Failure to notify USCIS could result in the employer being held liable for the employee’s wages.

3. Withdraw the H-1B Petition

   – USCIS will revoke the petition on the date requested.

4. Withdraw the Labor Condition Application (LCA)

   – This can be done electronically through iCERT, by email, or by written request. While not strictly required, withdrawing the LCA can help make the termination documentation clearer and avoid potential back pay liability.

For further assistance, consult with an experienced business immigration attorney to navigate these legal requirements smoothly and efficiently. Please contact our immigration attorney to assist with this process.

March 2023 Update: the US has received enough applications to meet the federally mandated 65,000 H-1B visa cap for the fiscal year 2023.

Effective on March 9, 2021, a new H-1B selection process will be active which was modified to prioritize wages to protect the economic interests of US workers while ensuring that most highly skilled foreign workers benefit from the temporary employment program.

November 23, 2020 Update: US officials have announced a new policy that will help spouses of H-1B and L-1 visa holders who are looking to work in the US.

What is an H-1B Visa ?
An H-1B visa is a U.S. work permit that allows foreigners to work “specialty occupations” for U.S. employers. This means that your employment in the United States cannot be for just any type of work; the work performed must involve a high level of skill such as in a professional occupation. Most applicants under the H-1B work visa category are highly educated with a university degree. However, a high education is not always necessary. Some H-1B visas can be granted to applicants with little education but with lots of work experience.

Qualify for an H-1B Visa

Employment Retirement
To qualify for an H-1B visa, you must perform services in the U.S. in a specialty occupation. You must have:

• a job offer from a U.S employer that offers you the “prevailing wage” paid in the same U.S. geographic area for similar work that you will be performing the correct background to the job offered

Although the visa will be held by an employee, it is the responsibility of the employer to file for an H-1B visa. Both an employer and an employee may wish to retain a lawyer in order to make the process as smooth as possible.

Processing time and Period of the Work visa
Processing times range from 9 to 14 weeks depending on the INS Service Center that has jurisdiction over the case.

H-1B work visas can be issued for a period of up to 6 years. However, the INS typically will issue the visa for an initial period of 3 years. Extensions must be filed after the three-year period usually requiring a new Labor Condition Attestation (LCA).

Education, Degree and skills requirements
The nature of the specific duties of your job offer must be so specialized and complex that knowledge required to perform the duties is usually associated with a bachelor’s degree, where your U.S. employer would normally require a degree for the position offered. The degree requirement would be common to the industry in parallel positions among similar organizations or the duties of the positions are so complex that only a person with a degree can perform them. It is important to note that where a degree is not usually required for an occupation, an H-2B work visa may be appropriate. In most cases you may need:

• US bachelors or higher degree
• A foreign degree that’s equivalent
• Unrestricted state license, registration, or certification
• OR education, training, or experience within that specialty field

Steps to an H-1B Visa

1. Find a US Business Sponsor
   To successfully start your H-1B work visa application, you will need to be sponsored by a US employer to apply.
2. Employer Submits LCA
   Once a US company has hired you, the employer will need to complete an LCA which stands for Labor Conditions Approval agreeing that the employee will receive equal or greater than the prevailing wage for the position in that field. Labor Condition Application (LCA), Prospective specialty occupations must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer/agent. The application requires the employer/agent to attest that it will comply with the following labor requirements. The employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working. The employer/agent will provide working conditions that will not adversely affect other similarly employed workers. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment

3. Employer Submits Form I-129
   Once the LCA has been approved, the employer will then file the Petition for a Nonimmigrant Worker, Form I-129.

4. Complete Application at a US Embassy or Consulate
   Once the petition is approved, the application is filed by the foreign national to the U.S Consulate. If you are Canadian, you can simply go to a US port of entry with the approved petition and be admitted.