GUEST POST: What HR needs to know about how immigration law impacts firing decisions

Today we have a guest blogger at The Employer Handbook. It’s Emily Neumann. Emily has practiced immigration law in Texas since 2005, representing both employers and immigrants. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news. She is a partner in Reddy & Neumann, P.C. in Houston and Dallas.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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(And now, back to Emily’s guest blog post…)

Imagine that you’ve just sifted through tons of resumes and job applications to fill your company’s latest employment opening; termination is the last thing on your mind. You have finally narrowed down your candidate and learned that she requires immigration sponsorship for an H-1B visa. After taking into consideration the compliance requirements, the cost of sponsorship, and the processing time, you decide to proceed to offer employment to the candidate and sponsor her visa. The process goes smoothly and she joins your company within a few weeks.

Now imagine that a few months have passed and you learn that a decision has been made to terminate the H-1B worker’s employment. This is a crucial point in which failure to do so in compliance with the immigration requirements can get an employer and employee into trouble. Termination of an H-1B worker must be done properly to ensure that there is no continuing liability to pay the terminated employee’s wages.

There are three elements to a proper termination: 

• Notification to the H-1B worker that employment relationship has been terminated
• Notification to US Citizenship and Immigration Service that the employment relationship is cancelled
• Payment and/or offer to pay transportation home

Note that just terminating the employee is not sufficient. If all three steps are not taken, the company can be liable for paying back wages during a Wage and Hour Investigation by the Department of Labor. Furthermore, be sure to clearly document that all three steps have been taken. That means putting everything in writing and keeping it in your records.

As an attorney working with both employers and employees, I would further like to stress that employers carefully consider the effect of a termination on the H-1B worker. The day the H-1B worker is terminated, she will lose her immigration status. There is no grace period. This can be devastating to the worker. Once out of status, it is very difficult for her to get back into status. If at all possible, it is best to give notice to the worker. This gives her a chance to find other employment or change to some other visa status before the termination occurs. Otherwise, the worker is expected to leave the country immediately upon termination to avoid remaining in the country with no status.

A recent phone consultation I had highlights the effect of a bad termination on an H-1B worker. Her company hired her for a project they were doing for a new customer. After working on the project for two years, the project was ended abruptly. Rather than seeking to place her on another project, the company decided to terminate her employment and sent notification to USCIS that the employment relationship is cancelled. The company did not notify her that her employment was terminated or that they had informed USCIS. Two weeks later, an opportunity for a new project arose and the company had her start working on the new project. Another two weeks went by and the company received a letter from USCIS confirming that he H-1B petition has been withdrawn in response to the company’s notification of the termination. The H-1B worker has been working without authorization for two weeks and has been out of status for four weeks, i.e. from the time the employer sent the notice of termination to USCIS. The worker has now found a new job, but because she was unknowingly out of status she must leave the country and apply for a new visa at a U.S. Consulate before she can join the new company. Lesson of this story: If you need to terminate an H-1B worker, be cognizant of the consequences and follow all the steps.