Termination is always a tough decision for employers, but they have to take it when economic scenarios compel them. We must remember that making this decision for foreign workers always comes with additional challenges. Other than complying with state and federal law, since the employee is an immigrant, laws related to work-based visas also come into force. We advise that it is essential to consult the immigration attorney and the employment lawyer before taking action.
Let’s deep dive into the essential points for different employment-based visa categories employees while deciding to terminate.
H1-B, H1-B1 and E3 employees:
There are five primary things that the employer needs to do or keep in mind:
- Give written notice to the employee.
- Written notice to USCIS
- Withdraw the LCA ( Labor condition application ) when possible.
- The employer needs to offer the cost of reasonable transportation to the employee’s country of the last residence to both H1-B Visa and E3 workers. Remember that this rule is not applicable for the employee’s dependents and in case the employee resigns.
- The employer remains liable for back wages until there is a bona fide termination.
There are precisely two things that an employer needs to do while terminating an O1 Visa employee.
- The employer needs to give written notice to the USCIS about the termination.
- The employer has to pay the employee the cost of transportation to their country of last residence.
TN and L1 employees:
There is technically no specific immigration guideline an employer needs to follow while terminating a TN Visa or L1 visa employee. There is no guideline related to written notices, and the employer doesn’t have to bear the cost of the transportation.
While dealing with the termination of E1/E2 Visa employees, the employer can stay assured that there is no specific guideline they must comply with. Still, we advise them to notify the U.S. consulate responsible for E visa issuance about the termination.