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Do We Need to Tell Government if We Fire a Foreign Worker?

By September 21, 2015March 22nd, 2022Immigration, Melissa Nolan Featured


In most circumstances, when a company fires an employee, the company does not need to notify the government. While there may be exceptions to that rule in certain unique situations for U.S. workers, when a company fires a foreign worker, it almost always is encouraged to notify the government, or in certain cases, required to do so.

There are a variety of employment-based visas. Some of the most common of these visas impose a requirement on the employer that the employer notify the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) when an employee fails to report to work on the start date, quits, or is fired prior to the end of the approved period of employment.

In most cases, this notification may be accomplished by sending a letter notifying the appropriate government agency of the termination of the employment relationship. We recommend that this notification be sent via certified mail with confirmation of the agency’s receipt. In other situations, it might be necessary to submit the notification electronically, through the government agency’s electronic application filing portal.

Although a company typically is more concerned with other matters when an employment relationship is terminated, the consequences of failing to provide this notification to the government could be significant. For example, when a company sponsors a worker for H-1B status, the company agrees to pay the H-1B worker the prevailing wage for the position. This obligation to pay the prevailing wage continues until the end of the H-1B period, which may be as long as three years, unless there has been an “effective termination” of the employment relationship prior to then. For H-1B purposes, an “effective termination” requires: (1) written notification to USCIS of the termination of the employment relationship; and (2) an offer by the employer to pay the terminated employee’s cost of return transportation to his or her home country. In addition, it is recommended that the employer also notify the DOL in order to complete the effective termination. If these steps are not followed, the employer may be liable to pay the terminated employee’s salary for three years even if the employee was terminated in the first week of employment.

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Spouses of H-1B Visa Holders Finally Eligible to Work

The Department of Homeland Security (DHS) recently issued regulations that will make H-1B visa status even more attractive to foreign workers. Although the H-1B visa has long been the most widely used employment-based visa, one significant disadvantage of this visa status was that spouses of H-1B visa holders who were present in the U.S. in a dependent visa status (H-4) were not allowed to obtain authorization to work. For some married couples, this prohibition on the spouse obtaining work authorization was enough to prevent the prospective worker from obtaining the H-1B visa. In contrast, spouses of holders of other types of employment-based visas, such as the L and O, have been allowed to obtain authorization to work.

However, new DHS regulations, which become effective on May 26, 2015, will allow certain H-4 visa holders to apply for work authorization. To be eligible to apply for work authorization, the H-4 visa holder must be the spouse of an H-1B visa holder who falls into one of the following two categories: (1) Is the beneficiary of an approved I-140 Immigrant Petition for Alien Worker; or (2) Is the beneficiary of an H-1B petition filed under the AC-21 Act, which permits certain individuals to extend their H-1B status beyond the six year maximum term.

If an H-4 visa holder satisfies one of the above requirements, beginning May 26, 2015, he or she may file a Form I-765 Application for Employment Authorization. If approved, the H-4 visa holder will be granted authorization to work for the period of time he or she is authorized to remain in the U.S.

The purpose of the new regulations is to remove the disincentive inherent in the current system, which encourages highly skilled foreign workers to take their skills to other countries, where both spouses may engage in productive employment. The new regulations are part of the administration’s efforts to attract and retain highly skilled and entrepreneurial individuals. Regardless of the intention behind the regulations, they will be a welcome benefit to tens of thousands of H-4 visa holders who currently are prohibited from working.

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