With mass layoffs happening at many large tech companies with offices in the U.S., there are special considerations and obligations employers have when laying off their workforce that can include the termination of H-1B sponsored employees. Consequences for not following regulations can include costly litigation and potentially owing back wages to an H-1B employee.
The three key obligations of a company are to (1) execute a clear and "bona fide" notification of termination to the H-1B employee; (2) notify USCIS of the change in employment status; and (3) provide the reasonable cost of transportation back to the last place of foreign residence to the H-1B employee. In addition to the three key requirements, there are additional considerations to avoid the ire of the Department of Labor (DOL). The DOL expressly prohibits the "benching" of H-1B employees, hence the need for a "bona fide" termination. And if down the line, the employer would like to hire back the terminated H-1B employer, a new H-1B petition needs to be filed for that employee.
Detailed and further guidance on the termination of H-1B employees can be found here, and the below infographic has an overview of the basics of an H-1B layoff. If your company is going through layoffs and it is essential to consult with immigration counsel to avoid any missteps. Please contact one of Klasko's experienced employment-based immigration attorneys 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.
