Termination or Layoff of H-1B Employee
Even though reports suggest the United States’ economy is improving, terminations, layoffs, forced leaves of absence, hiring freezes, salary and benefit reductions, and reductions in hours, are still prevalent hovering threats across all industries. Labor laws protect many employees from the consequences of such actions, but businesses should also be aware of applicable immigration laws. Specifically, United States businesses who have employees who hold H-1B visas need to know if and how an H-1B employee can be legally terminated.
An H-1B visa allows an individual to come to the United States temporarily to work as a professional in a specialty occupation. If an employer terminates or lays-off an H-1B visa holding employee without following proper protocol, the status of both the employer and the foreign national worker could negatively be affected.
An employer who wants to terminate an H-1B employee must clearly notify the individual of the termination. The employer must also notify U.S. Citizenship and Immigration Services (USCIS) and revoke the H-1B petition. The employer must also offer the employee the return cost of transportation to that individual’s home country. If an employer fails to do so, he may have a continuing wage obligation.
Leave of Absence
If an H-1B employee requests a leave of absence, this does not impact the employer. However, the request and grant of the leave must be in writing. The employer cannot require its employees to take a leave of absence as a company cost-saving measure.
Employers should consult with an attorney before taking any action that might affect the status of any H-1B employees to avoid violations of immigration laws. Ivener & Fullmer, LLP, a business immigration law firm, serves business owners, human resource professionals, in-house counsel, international business people, investors, and entertainers. If you have any questions, please contact one of our partners in our Los Angeles office.