Terminating a Foreign Worker

Terminating a Foreign Worker

Terminating an employee is never an easy decision. When that employee is a foreign worker, additional challenges and consequences must be considered. In addition to complying with federal and state law, an employer may also be required to notify USCIS of the foreign worker’s cessation of employment. The employer must maintain proof that it has complied with all termination regulations.

H-1B, E-3, and H-1B1 Workers

Certain non-immigrant visas require the employer to issue written notices to the employee and to USCIS. For H-1B, H-1B1, and E-3 employees, the employer must advise the employee in writing of the termination and the effective date. If the petition was filed with USCIS, written notice to USCIS, otherwise known as a withdrawal notice, is required. The withdrawal notice must be sent to USCIS within a reasonable time after the termination has occurred.

In addition, if the employer terminated the employee, the employer must offer to pay the reasonable costs of return transportation to the employee’s country of last residence. The offer is not required if the employee resigns or chooses not to leave the United States after the termination. The employer is not required to offer nor pay return transportation fees for any dependents. Until there is a bona fide termination, the employer may be held liable for the payment of the worker’s wages.

O-1 Workers

If the employer terminates an individual on O-1 status, the employer must send a written withdrawal notice to USCIS. In addition, the employer must offer to pay the cost of reasonable transportation to the last country of residence. Again, if the employee resigns or chooses not to leave the United States after the termination, the offer to pay return transportation fees is not required. The employer is not required to offer nor pay return transportation fees for any dependents.

L-1 and TN Workers

If the employer terminates a foreign worker on TN or L-1 status, there is no official USCIS reporting requirement. There is also no requirement to pay for the cost of return transportation. However, the employer should still provide written notice of termination to the worker.

E-1 and E-2 Workers

If the employer terminates a foreign worker on E-1 or E-2 status, there is no reporting requirement. However, it is recommended that the employer notify the consulate that issued the visa. There is no requirement to pay for the cost of return transportation. However, the employer should still provide written notice of termination to the worker.

J-1 Non-Immigrants

The Department of State indicates that J-1 non-immigrants must leave the United States immediately if they are unable to maintain or change their status. The 30-day grace period granted to J-1 non-immigrants at the end of their status is not applicable in the event they are terminated or laid off or cannot maintain or change their status. J-1 holders must also notify and/or get permission to change employers with the authorizing body, which may be the international office or program sponsor.

F-1 Non-Immigrants

F-1 students using Optional Practical Training (OPT) employed based on an Employment Authorization Document (EAD) must report all material changes, including the end of their employment, to the Designated School Official (DSO).

F-1 students who cannot or will not maintain or change their status are entitled to either 90 or 150 days of unemployment. The exact amount of time provided is dependent upon whether they are in the initial 12-month OPT period or the 24-month STEM OPT period.

To reflect changes in employment, F-1 students on initial OPT will need to notify and obtain a newly endorsed I-20 form from the school DSO. F-1 students on STEM OPT will also need to notify and obtain a newly endorsed I-20 from the DSO. In addition, students on STEM OPT will need to prepare and submit a new I-983 training plan to the DSO and submit an amended Form I-765 to USCIS to update the already approved STEM application.

Grace Period

The regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications to be considered in lawful status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period noted in the I-94, whichever is shorter. During this period, workers may be able to maintain their non-immigrant status if:

1. A new employer timely files a petition on their behalf (ex. H-1B transfer); or
2. They file for a change of status before the end of the grace period.

Alternatively, workers may also choose to depart the United States by the end of the grace period.

While the timely filing of a change of status application will prevent the accrual of unlawful presence until the application is adjudicated, the filing will not confer employment authorization in the new position while the application is pending. Additionally, it will not extend employment authorization if the original visa classification is no longer valid.

The timely filing of an application will stop the accrual of unlawful presence until the new application is adjudicated. If the new application is ultimately approved, the individual is considered to have been in a period of authorized presence while the application was pending. However, if the application is denied, the individual will start to accrue unlawful presence the day after the denial decision. Remaining in the United States for more than 180 days following such a denial may have serious consequences, including becoming subject to a bar on re-entry into the United States for three or 10 years. As soon as the denial is issued, the worker should be prepared to leave the United States.

If a new application or petition is not filed for the foreign worker by the time the grace period ends, the worker is considered to be violating the terms of his or her non-immigrant stay. A foreign national who remains in the United States after the expiration date on the I-94 Form or after a finding of unlawful presence is considered unlawfully present and is subject to additional penalties, such as:

• Cancellation of any valid U.S. non-immigrant visas and a restriction on applying for future visas;
• The application of the three-year bar on admission to the United States if the worker remained unlawfully present in the United States for 180 days; and/or
• The application of the ten-year bar on admission to the United States, if the worker remained unlawfully present in the United States for one year or more.

To receive case-specific feedback regarding the termination of a foreign employee, please contact Stone Oak Immigration PLLC to schedule a paid consultation.