Considerations When Terminating a Foreign Worker – Guide by the NPZ Law Group

​When terminating a foreign worker in the United States, employers must consider several State and Federal immigration laws. Therefore, this guide by the NPZ Law Group will explain what employers must do when terminating certain types of noncitizen workers.

Points to Consider When Terminating an Employee in H-1B, H-1B1, or E-3 Status
The additional rules by the Department of Labor (DOL) regarding the Labor Condition Application and the rules of the US Citizenship and Immigration Services (USCIS) together make the termination of these employees quite challenging. Also, Employers may be liable for back wages if terminations are not effectuated correctly with the USCIS.

The terminations require the following.

• Written notices to the terminated employees before termination
• Written notices to USCIS (this is only if the petitions were filed with USCIS)
• Withdrawal of Labor Condition Applications filed with the U.S. Department of Labor.

When employers terminate foreign employees, it may be necessary for the employer to “offer” the cost of reasonable transportation for their return to their former country of residence. However, and generally, employees can stay in the United States for 60 days after their termination. This period can also be used to search for another employer that maybe able to keep them in the US.

Points to Consider When Terminating an Employee of O-1 Status
The terminations require the following:

• Written notices to USCIS
• An offer to cover the cost of reasonable transportation for the employees’ return to their former country of residence

Points to Consider When Terminating an Employee in E-1 and/or E-2 Status
The terminations have no mandatory requirement. However, it is recommended to do the following:

The US consulate responsible for issuing the E visa to an employee should be notified that the employee’s contract (employment arrangement) was terminated.

Points to Consider When Terminating an Employee in L-1 and/or TN Status
There do not seem to be any requirements or recommendations for the termination of employment of L-1 and TN employees. Therefore, there is no affirmative obligation on the employer to make any notification or even cover the cost of return transportation.

I-140 Petition Withdrawal
Employers do not need to withdraw I-140 petitions after the termination of employment of foreign workers. Withdrawing the I-140 petition may negatively impact the foreign worker. In general, it’s best to wait until 180 days after the termination occurs before withdrawing the petition—i.e., if the employer even chooses to withdraw the petition in the first place.

Issues Regarding Dual Representation
There are situations in which the employer and the employee are represented by the same attorney or law firm. While that may work in some situations, there may be cases where such an arrangement may present a “conflict of interest”. So, as an employer, it may be best to have a separate attorney from that of the employee.

Many immigration law practitioners make it clear in their engagement letter that the duty of loyalty may be afforded to one party on the other. Employers and Employees should be clear about the responsibilities of legal counsel from the beginning of the representation.

If you have any questions about how these laws in the United States may impact you or your family or want to access additional information about the United States or Canadian immigration and nationality laws, please feel free to get in touch with the immigration and nationality lawyers at NPZ Law Group. You can send us an email at [email protected], or you can call us at 201-670-0006 extension 104. In addition, we invite you to find more information on our website at www.visaserve.com.