Ending employment for a foreign worker can involve immigration steps in addition to normal employment-law requirements. The right steps depend on the worker’s visa category. Employers should plan carefully, give required notices, and understand how a termination may affect the worker’s time in the United States.

This overview explains the points in plain language for employers, HR professionals, and business owners. It summarizes considerations for H-1B, H-1B1, E-1, E-2, E-3, TN, L-1, and O-1 workers. Every situation is different, so it is important to obtain legal guidance before taking action.

Why Termination Requires Extra Planning

Terminating any employee is a serious decision. When the employee has a work-related immigration status, the employer may have additional responsibilities under immigration rules.

Before moving forward, an employer should consider both employment law and immigration law. Ventresca & Ventresca LLP recommends speaking with both an immigration lawyer and an employment lawyer so that the termination process is handled carefully.

Notice Requirements for H-1B, H-1B1, and E-3 Workers

For workers in H-1B, H-1B1, or E-3 status, termination generally involves several steps. The employer should provide written notice to the employee. If the petition was filed with U.S. Citizenship and Immigration Services (USCIS), the employer should also provide written notice to USCIS.

When possible, the employer should withdraw the labor condition application. Taking these steps matters because the employer can remain responsible for back wages until there is a bona fide termination.

If the employer ends the employment of an H-1B or E-3 worker, it must offer to pay the reasonable cost of transportation to the worker’s country of last residence. This transportation obligation does not include the worker’s dependents. It also does not apply if the employee resigns or chooses not to leave the United States.

Requirements for O-1, TN, L-1, and E Visa Workers

The immigration-related steps are not the same for every visa type.

• O-1 workers: The employer should give written notice to USCIS and offer to pay reasonable transportation costs to the worker’s country of last residence.
• TN and L-1 workers: The document does not identify a specific immigration notification requirement or return transportation requirement.
• E-1 and E-2 workers: Notice to the U.S. consulate that issued the visa is not mandatory, but it is recommended.

These differences are one reason employers should confirm the worker’s exact immigration category before communicating the termination or making final decisions.

Understanding the Grace Period After Employment Ends

Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status may have a grace period after their employment ends. The grace period can last up to 60 days, but it may be shorter if the worker’s currently authorized stay ends sooner.

For example, if a worker’s authorized stay expires 14 days after termination, the grace period ends on that expiration date—not at the end of 60 days. If the authorized stay extends beyond 60 days, the grace period can last up to 60 days from the termination date.

During an available grace period, the worker may remain in the United States without working and is not considered out of status. The worker may use that time to prepare to leave, look for another employer that can file a petition, or seek a change to another immigration status.

The document also notes that this period can be especially useful for workers who qualify for H-1B portability. In those situations, the worker may begin work when an H-1B portability petition is filed.

Think Carefully Before Withdrawing an Approved I-140

An employer is not required to withdraw an approved I-140 petition after the worker’s employment ends. If withdrawal is being considered, timing can be important.

A withdrawal request made before 180 days have passed from the I-140 approval date will automatically revoke the petition. The worker keeps the priority date for a future I-140 petition, but cannot use that approval to qualify for H-1B extensions beyond the normal six-year limit.

If the withdrawal request is submitted after 180 days have passed from approval, the I-140 is not automatically revoked. In that situation, the worker may keep benefits connected to the approved I-140, including eligibility for certain H-1B extensions beyond six years.

For an employer, allowing an I-140 to reach the 180-day point before withdrawing it may be a benefit the employer wishes—or does not wish—to provide to the departing worker. This is a decision that deserves thoughtful review.

Be Careful When One Lawyer Represents Both Parties

Sometimes an immigration law firm represents both the petitioning employer and the foreign worker. This is called dual representation.

In a dual-representation situation, the attorney must keep both parties adequately informed about information related to that representation. Information shared by one party cannot be kept confidential from the other party. Employers seeking advice about a potential termination should keep this in mind before sharing specific information or names.

A Practical Employer Checklist

Before finalizing the termination of a foreign worker, employers and HR teams can take these basic steps:

• Confirm the worker’s current visa category and authorized stay end date.
• Identify whether written notice to the employee or USCIS is required.
• Determine whether a labor condition application should be withdrawn.
• Review whether an offer of return transportation is required.
• Check whether there is an approved I-140 and, if so, review the approval date before considering withdrawal.
• Consider whether the matter involves dual representation and what information can be discussed.
• Consult legal counsel before taking action.

FAQ

Does every foreign worker receive a 60-day grace period?

No. The grace period may be up to 60 days, but it ends earlier if the worker’s currently authorized stay expires first.

Can a worker continue working during the grace period?

The document states that a worker may remain in the United States during an available grace period without working. It also notes that certain workers eligible for H-1B portability may begin work when a portability petition is filed.

Must an employer pay for a worker’s family to travel home?

For terminated H-1B and E-3 workers, the employer must offer reasonable transportation to the worker’s country of last residence. The document states that this does not include dependents.

Must an employer withdraw an approved I-140 after termination?

No. Withdrawal is not required, but the timing of a withdrawal request can affect the worker’s benefits.

What should an employer do first?

Start by confirming the worker’s immigration category and seeking immigration and employment-law advice. Ventresca & Ventresca LLP helps employers in Wexford, Pennsylvania, understand immigration and HR-related legal considerations when time-sensitive issues arise.

If this information affects a pending or planned termination matter, contact Ventresca & Ventresca LLP to discuss your options.