Frequently Asked Questions: Laying Off H-1B Employees
Answers to these FAQs are meant to apply to most, but certainly not all, situations. Therefore, they should not be construed as legal advice, and we strongly recommend interested readers to seek legal advice from a reputable immigration attorney regarding his/her specific situation.
Must the company revoke the H-1B approval of an employee who was laid off?
Yes. Once H-1B employment terminates, the employer should notify the attorney so that a written notification can be sent to USCIS. Failure to do so may subject the employer to back-pay liability.
Should the company offer to pay for an H-1B employee's airfare back to his/her last place of foreign residence?
Yes. If an H-1B employee is terminated before his/her H-1B expires, the employer must offer to pay for the employee's reasonable cost of return transportation. The obligation to pay does not apply if the employee does not actually leave the U.S. (e.g., if the employee attains H-1B employment with another company or files for a change of status). There is also no obligation to pay transportation costs for dependents or moving expenses.
If severance packages are paid in installments, are the terminated employees in valid H-1B status through the installment period?
No. Laid off H-1B employees are no longer in status, even as they receive severance pay in installments. On the other hand, USCIS bases its determination of whether one has maintained status on whether the H-1B beneficiary has a pay-stub that is less than 30-days old. Therefore, if a laid-off H-1B beneficiary intends to remain in the US either in H-1B status with a new employer or in a different status, the availability of recent pay-stubs may be helpful.
How long can the employee remain in the U.S. after a layoff or termination of employment?
Currently, statute and regulations do not provide any grace period from the time an H-1B employee ceases employment until the time a new petition is filed on his or her behalf, although USCIS may, in its discretion, excuse a late filed petition when extraordinary circumstances exist. Therefore, in most cases, the employee should leave the US, file a change of status or H-1B (i.e., transfer) application immediately after being laid off.
What if the laid-off employee gets another H-1B job offer?
The new employer should file an H-1B petition immediately. Time is of the essence. If USCIS feels the H-1B beneficiary has been out of work, and hence out of status, for too long, it has the discretion, and will likely exercise it to deny the extension of stay request but approve the petition as consular pick-up. In that case, the employee must depart the U.S., obtain an H-1B visa stamp at an American Consulate abroad (unless the employee already has a valid H-1B visa stamp) and return to the US in H-1B status before commencing or resuming employment with the new employer.
Also, USCIS recently opined that if an employer revokes an employee’s H-1B approval after termination, and that beneficiary ports to a new employer and begins employment upon the filing of a new H-1B prior to the revocation of the H-1B petition filed by his or her former employer, then the beneficiary will be in an "authorized period of stay" while the newly filed petition is pending. In other words, if the employee ports to the new employer after revocation of the H-1B by the previous employer, USCIS has the discretion to deny the extension of status.