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FAQs: For Employers
I. Nonimmigrant Issues
II. Immigrant Issues
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I. Nonimmigrant Issues
If I lay off an H-1B employee, do I have to notify the USCIS ?
Yes. USCIS regulations state that employers are required to notify the USCIS of material changes in the terms and conditions of all H-1B employment. Furthermore, the Department of Labor suggests that a bona fide termination only occurs when the employer notifies the USCIS of the termination. Thus, if the employer does not notify the USCIS and the terminations are not clearly documented, the DOL may find that the employer illegally "benched" an H-1B employee during non-productive times, exposing the employer to back pay liabilities.
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If laid off employees receive severance packages containing two months of pay and the severance pay is paid out in regular installments instead of a lump sum, are the employees still in valid H-1B status during the two months immediately after the lay off?
It depends. The employer can delay the effective termination date by putting the employees in "on-call" status during the two-month period. This allows the H-1B employee to remain in valid H-1B status until the end of the two-month period. However, to guard against the DOL's benching provision, the employer must provide full benefits to such employees. If this strategy is being utilized, the pay should not be termed "severance pay" as that would indicate that the employment relationship has already been severed and thus the worker is not truly "on-call."
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Is the employer obligated to pay for an H-1B employee's airfare back to his/her last place of foreign residence?
Yes. If the employer terminates the employment relationship prior to the end of the validity of the H-1B, it is responsible for the employee's reasonable cost of return transportation. This obligation does not apply to dependents of the employee and the company is not responsible for other relocation expenses such as moving costs. Since some laid off H-1B workers may choose to remain in the U.S. and seek other employment opportunities, an employer can tell the terminated employees that they may use the company travel account to book a single on-way ticket instead of giving the employee money. The company does not have to ensure that the employee actually leaves the U.S.
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II. Immigrant Issues
What if we obtained an approved Labor Certification for a laid off employee?
Approved labor certifications belong to the employer but is specific to the employee/beneficiary it was applied for. Therefore, if there is no longer an intent to employ the original beneficiary, the labor certification becomes useless. Substitution of a different beneficiary into the approved Labor Certifications is no longer allowed.
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What if the company has obtained approved I-140 Petition for a laid off employee?
If the approved I-140 is not withdrawn, the laid off employee can retain his/her priority date for a future employment-based I-140 Immigrant Petition.
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