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What rules must we follow if we must lay off work-visa employees?

by on
in Employment Law,Human Resources

Q. Do we have any duties or obligations if we discharge employees who are in the United States on work visas?

A. Technically, the employee’s authorization to stay in the United States ends when he or she ceases to perform work for the sponsor employer. This is true even of laid off employees who will receive severance pay for a certain period after being laid off.

There is no official grace period for laid off employees. In practice, U.S. Citizenship and Immigration Services (USCIS) has often applied a 30- to 60-day grace period in spite of its official stance.

Nonimmigrant employees (with employer sponsored status) who remain in the states beyond termination are deemed to accrue “unlawful presence” unless the employee files an application for change of status or another employer files an application with the USCIS. Per the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, foreign nationals who accrue 180 days of unlawful presence are barred from the United States for three years. Those who accrue more than one year of unlawful presence face a 10-year ban.

Although officially deportable after being laid off or terminated, employees should logically expect some reasonable period to depart and should attempt to do so within a reasonable time. Overstays may affect the foreign national’s future applications for certain temporary visas.  

An employee may be able to remain in the United States by finding a new employer willing to sponsor him or her and file an application for change or extension of status before the employee falls “out of status” (e.g., technically prior to the termination).

Under H-1B visa portability regulations, an H-1B employee may be able to begin employment immediately upon the filing of the petition by the new employer.  

If the nonimmigrant employee elects not to leave the United States after termination, he or she must file an I-539 petition to change status with the USCIS—ostensibly before the layoff or termination. Some of the classifications available prior to termination include B-2 visitor status, or dependent status. Filing for B-2 or dependent status may provide additional time to prepare for departure or perhaps secure a work-authorizing status through a new employer.

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