What Happens if an H1B Employee is Terminated?

H-1B Termination – What Happens Next?

When an employee on an H1B visa is terminated, it can lead to a complex scenario filled with uncertainties. It is crucial for both the employer and the employee to be aware of the implications and necessary steps following this event. In the subsequent sections, we will discuss the potential ramifications of H1B termination and provide guidance on navigating this complex process.

H1B visa (for specialty workers) stamp in passport, blurred april calendar on background. H1B visa program deadline concept. Close up of hb1 visa after bona fide termination

An Overview of the H-1B Program

The H1B program is a non-immigrant visa category in the United States that permits employers to hire foreign professionals in specialty occupations. These professions typically require a higher level of education or specialized skills, including roles in sectors like technology, engineering, science, finance, and others. The H1B visa allows holders to live and work in the U.S. for an initial period of three years, extendable to six years. This program is instrumental in addressing skill gaps in the U.S. workforce, thereby contributing to the country’s economic growth and competitiveness on a global scale.

What is H1B Termination?

In the context of H1B employment, termination refers to the official end of an employment contract between an employer and an H1B visa holder. This could occur due to various reasons, including but not limited to completion of the project or contract, layoffs due to organizational restructuring, economy, performance issues, or mutual agreement between both parties.

Termination of an H1B employee is a significant event, requiring careful handling, as it directly impacts the individual’s immigration status in the U.S. Once the termination occurs, the H1B visa becomes invalid, and the individual must take necessary actions to maintain lawful status, such as finding a new H1B sponsoring employer, changing the visa status, or leaving the country. It’s critical that both employers and employees understand the implications to ensure compliance with U.S. immigration laws and minimize potential adverse consequences for the H1B visa holder.

What Are the Immediate Consequences of Termination?

Impact on Legal Status

When an H1B employee’s employment is terminated, there are immediate repercussions on their legal status within the U.S. Upon termination, the H1B visa becomes invalid, and the individual is no longer authorized to work for the sponsoring employer. This poses a risk to their lawful status in the country. This can also impact their chance of lawful permanent residence.

Grace Periods

However, U.S. immigration laws do provide a certain level of flexibility through a concept termed a discretionary grace period. The United States Citizenship and Immigration Services (USCIS) allows a ’60-day grace period’ to H1B workers following the termination of their employment. This period is either 60 days or until the end of the authorized validity period on the H1B approval notice if it ends before the 60-days. During this period, the individual can seek new employment with another H1B sponsor, apply to change their visa status (for instance, to a student visa or dependent visa), or make arrangements to leave the U.S.

In all instances, it is highly recommended to consult with an experienced immigration attorney to navigate this complex process.

h1b visa spelled out with scrabble letters against an American flag

What Are the Long-Term Consequences?

The termination of an H1B worker doesn’t just have immediate effects but also long-term consequences that can significantly impact the individual’s life and future prospects in the U.S.

Effect on Future Visa Applications

The termination of an H1B visa can complicate future visa applications. It could potentially create issues when the individual applies for a visa renewal, a different visa type, or employment authorization. Any periods of unlawful presence in the U.S., even unintentional ones, could result in a bar to re-entry into the country. Further, a record of termination could raise questions about the applicant’s employment stability and reliability. It’s essential for the visa holder to maintain proper documentation about the termination and any subsequent actions taken to amend the situation. 

Potential for Deportation

In worst-case scenarios, if the individual fails to maintain their lawful immigration status post-termination and exceeds their permissible stay, they might face the threat of deportation to their last place of foreign residence. The U.S. government could initiate removal proceedings against anyone who overstays their visa without taking appropriate steps to restore their lawful status. Deportation can have severe repercussions, such as a ban on future travel to the U.S. and negative impacts on any future immigration-related applications. Therefore, understanding and adhering to the legal obligations following H1B termination is crucial to prevent such dire consequences. Consulting an immigration attorney can provide valuable insights and guidance in these matters.

What Rights and Protections Does the H-1B Employee Have?

Despite the complexities associated with H1B termination, it’s critical to remember that H1B workers are entitled to certain rights and protections under U.S. law. These provisions aim to safeguard the interests of foreign workers, ensuring fair treatment and preventing exploitation or discrimination.

Explanation of Rights upon Termination

Upon termination, an H1B worker has the right to receive the final paycheck for the work performed, including any accrued vacation or paid time off. They are also entitled to any severance package as per the company’s policy or their employment contract. The employer is legally obligated to notify USCIS about the termination, effectively withdrawing the H1B petition on behalf of the worker.

Importantly, the employer cannot levy any penalty on the worker for early contract termination, nor can they force the worker to pay for the H1B petition costs, which include both the filing fees and the legal fees. Any such arrangements would be considered a violation of U.S. labor and immigration laws.

Legal Recourse Options

H1B workers who believe they have been subjected to unlawful termination have multiple legal avenues available. They can file a complaint with the Department of Labor (DOL) or the Equal Employment Opportunity Commission (EEOC). These agencies handle issues related to wage disputes, discrimination, and retaliation, among other employment rights violations.

In some cases, it might be possible to file a lawsuit against the employer in a federal or state court, especially if the employer has violated the terms of the employment contract. However, the feasibility and success of such legal recourse largely depend on the individual circumstances surrounding the termination. Hence, it’s advisable for H1B workers to consult with an experienced employment or immigration attorney to understand their rights and evaluate their options in the wake of contract termination.

Engineering working with drawings inspection on laptop in the office and Calculator, triangle ruler, safety glasses, compass, vernier caliper on Blueprint. Engineer, Architect, Industry and factory concept.

What are the Employer’s Responsibilities?

Upon termination of an H1B employee, the employer has several responsibilities that they must fulfill to comply with U.S. immigration laws. These responsibilities ensure the employee’s fair treatment and help maintain the integrity of the H1B program.

Notification Requirements 

The employer must promptly notify USCIS about the termination of the H1B worker’s employment. This is typically done by submitting a letter to the USCIS service center where the H1B petition was originally filed. The letter should clearly state the date of termination but not the reason for it. Failure to notify USCIS could result in the employer being held liable for the H1B worker’s wages, even after termination.

Return Transportation Home

Employers must inform the terminated employee it will pay for the terminated employee’s reasonable costs of return transportation to their home country. This doesn’t extend to the employee’s family members.  The employee must inform the employer if it accepts this return plane ticket or not.

Severance Payments, if applicable 

In addition to the final paycheck and accrued vacation or paid time off, the employer might be obligated to make severance payments to the terminated H1B worker if such a provision is included in the employment contract or the company’s policy. The terms and conditions of the severance package, including the amount and the mode of payment, should be clearly outlined in the employment agreement. It’s important for employers to adhere to these terms to avoid potential legal complications. The employer cannot pass on any costs related to the H1B petition, including the termination process, to the employee. This includes any costs associated with the severance package.

Employers also must pay terminated H1B workers for all back wages owed, which includes any unpaid salary and overtime, in order to comply with U.S. labor and immigration laws.

What Are The Next Steps After Termination?

Following the termination of the employment relationship, the individual may be unsure of the available options. However, there are different paths they can explore, each with its unique process and requirements.

Potential Options for Staying in the U.S.

After employment ends, the former employee could consider applying for a change of visa status. The U.S. offers various visa categories, each suited to different needs and circumstances. However, these options depend on the individual’s eligibility and the remaining duration of their lawful status.

Getting a Job With A New Employer

Another potential option is to seek employment with a new employer and apply for an H1B visa. This involves the employer filing a new H1B petition on behalf of the individual, along with paying the requisite filing fees. If approved, the individual will be permitted to work in the U.S., provided that they adhere to all terms and conditions associated with their visa status.

Process for Changing Visa Status

The process for changing visa status involves filing an application with USCIS using Form I-539, “Application To Extend/Change Nonimmigrant Status.” It’s crucial to submit this application before the current status expires. The application should include evidence supporting the change of status requests.

Returning to Home Country

If staying in the U.S. is not feasible or desirable, the individual should arrange to return to their home country. It’s crucial to depart the U.S. before the permissible stay period ends to avoid potential bars to re-entry. Before leaving, they should gather all relevant documentation, including records of their U.S. residency and income, which might be needed for tax purposes or future visa applications. Upon returning home, they can explore opportunities for remote work or international assignments with U.S.-based companies or consider applying for a different U.S. visa in the future.

What if the H1B Employee Termination Happens After Green Card Employment Sponsorship Has Begun?

In the event an H1B worker is terminated after the process for Green Card employment sponsorship has already begun, there are certain options available. The foreign worker may be able to keep the priority date of an I-140 petition (immigrant petition) that was filed by their previous employer. This is possible if the new employer files a new labor certification and, upon approval, submits a new I-140 petition. This process allows the foreign worker to retain their priority date and potentially expedite the Green Card process under the new employer. However, the specific circumstances and immigration policies at the time should be carefully considered. Legal advice from an experienced immigration attorney is strongly recommended in these situations.

h 1b employee in a meeting with other employees. one worker is standing and showing the others at the table something important.

We’re Here to Help

Navigating the termination process as an H1B employee can be challenging. Careful attention to deadlines, understanding your options, and maintaining clear and open communication with your employer and legal support are of utmost importance during this process. Remember, you are not alone. Secure sound legal advice to understand the complexities associated with your specific situation. When a situation arises that necessitates a change in your immigration status, contact us at Bashyam Global LLP. Our team of experienced immigration attorneys is ready to guide you every step of the way, ensuring you understand your rights, your options, and the process ahead. Don’t hesitate to reach out for support; we are here to help you navigate this complex journey.

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