By Laura Bloniarz, Senior Associate, WR Immigration
Whether it’s called downsizing, rightsizing, streamlining, layoff, “redundancies”, reduction in force, off-boarding, force reduction, re-engineering – it’s all the same employment action, and any type of non-voluntary termination of employment at your company has an impact on your company’s immigration program.
All of these considerations and more are discussed in the upcoming Dec. 13th WR Immigration webinar, Immigration Planning: Preparing for a Global Recession? Register Here>>
How can an employer support their foreign national employees[1] in the wake of layoffs?
Termination of employment is always tough, but it is particularly tough for foreign national employees. To the greatest extent possible, we recommend proactive communication with the employer’s immigration counsel to ensure the legal team is prepared to dedicate sufficient resources to timely support consultations for all impacted foreign national employees. For the reasons described in detail below, we recommend offering consultations to both terminated foreign national employees and retained foreign national employees as both experience unique challenges after layoffs.
What happens when employment is terminated for a Foreign National employee?
As an employer of foreign national employees, it is critical to follow the required obligations for terminating an H-1B worker. The employer has the following obligations when terminating an H-1B worker:
- Provide notice of termination to the employee in writing
- Notify the USCIS of the termination
- Offer to the terminated employee the cost of reasonable transportation to the H-1B worker’s home country (or country of last residence)
Many visa holders benefit from a grace period, which means the foreign national may remain in the lawfully present in the United Status for a specified number of days. Foreign national employees in E, H-1B, H-1B1, L-1, O-1, and TN status are allowed a grace period for remaining lawfully present in the United States of 60 days or the end of their authorized period of stay whichever is shorter. During the grace period, the nonimmigrant worker is not considered out of status just based on the loss of employment. The grace period provides the nonimmigrant worker up to 60 days to find a new employer who can file an extension of status or change of status petition on their behalf before the grace period expires.
If the nonimmigrant worker is unable to find a job with new company and timely file for an extended or new work authorized status before the end of the grace period, the nonimmigrant worker will have to leave the United States. Alternatively, before the grace period is over, the nonimmigrant worker may change status to remain lawfully present in the United Status. If considering changing status to remain in the United States, we strongly recommend consulting with an immigration attorney to understand the limitations and compliance requirements before filing any change of status applications. There are significant consequences to remaining in the United States without maintaining nonimmigration status, so we strongly recommend that if someone is in this situation that they seek immigration counsel to explore their options as soon as possible.
The employer will also want to consider green card sponsorship implications for the terminated foreign national employee. Of course, employer actions will depend on the stage of the PERM (Labor Certification) stage:
- PERM application (Form 9089) NOT filed with the Department of Labor (DOL) – the employer to stop processing the foreign national employee’s case and the application will not be filed.
- PERM application (Form 9089) filed with DOL – employer recommended to withdraw the pending application.
- PERM application (Form 9089) approved by DOL, but the I-140 Immigrant Petition has not yet been filed, employer should not take any further action on behalf of foreign national employee.
Similar analysis applies for employer’s processing the I-140 Immigrant Petition on behalf of terminated foreign national employees. If the case is in legal prep or filed, but not approved by U.S. Citizenship and Immigration Services (USCIS), then employer should stop working on the case or withdraw the pending petition. If the petition has already been approved by USCIS, employer has no action and the terminated foreign national employee should be able to retain their priority date which is helpful for a future green card case with a new employer. The terminated foreign national employee’s priority date can be retained even if the employer withdraws the I-140 after approval. To confirm, to be eligible for a green card, the terminated foreign national employee in this situation will likely need to obtain a new PERM certification through the DOL and I-140 Immigrant Petition approval through USCIS with a new employer if the Form I-485 Adjustment of Status Application was not already submitted and pending for at least six months prior to foreign national employee’s separation with employer.
If Form I-485 Adjustment of Status Application is filed and pending, in certain circumstances the terminated foreign national employee may continue their I-485 Adjustment of Status Application with a new employer. The following must all be true:
- Employee’s I-485 Adjustment of Status Application has been pending for more than 180 days; and
- The new employment in the US must be in a same or similar occupation as the original PERM application (or, if a PERM application was not required, the I-140 Immigrant Petition); and
- The USCIS is notified of the change in employment using the Supplement J Form I-485.
What happens when the foreign national employee is retained after layoffs?
In the event of layoffs, the employer must carefully assess the impact on retained foreign national employees’ nonimmigrant statuses and ongoing green card cases. We strongly recommend the employer work closely with an immigration attorney to analyze and develop a strategy tailored to the employer’s foreign national population.
In the wake of terminations at the company, there may be changes to the retained foreign national employees’ employment terms. If the employer changes terms of employment for the foreign national employee, like new or different job duties, new location or additional worksite, or decrease in salary, etc. the employer is required to file an amended petition on behalf of the retained foreign national employee.
Most critically, in the wake of an employer terminating employment of U.S. workers, the employer’s ability to sponsor green card applications through the DOL’s PERM (Labor Certification) process will be significantly impacted. The employer will be timed out from submitting PERM Applications (Form 9089) with the DOL for six months from the date of the termination for similar occupations in area of intended employment. There is substantial risk for employers to submit PERM Applications (Form 9089) with the DOL after termination of U.S. workers within six months of termination of US workers without careful and detailed analysis. Please contact WR Immigration to have an attorney analyze and develop a strategy regarding the impact to your green card sponsorship program.
All of these considerations and more are discussed in the upcoming Dec. 13th WR Immigration webinar, Immigration Planning: Preparing for a Global Recession? Register Here>>
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[1] An employer may employ other foreign national employees that do NOT rely on employment-based sponsorship to remain lawfully work authorized; however, this article is targeted to address employment based nonimmigrant visa holders who are sponsored by an employer and rely on the employment relationship for maintenance of status and green card sponsorship. For purposes of this article, we refer to these employment-based sponsored nonimmigrant visa holders (ex: H-1B, TN, L-1, etc.) as “foreign national employees.” Back to Top
