After The Termination: What's Next?
In this current climate of layoffs and terminations a company must fulfill its obligations concerning foreign workers. A company that fires a foreign worker has certain obligations regarding both the temporary visa and the green card application. For example, when a company fires an employee who is on an H-1b temporary visa the company must notify the INS by withdrawing the H-1b petition. The employer must also pay the transportation for the foreign worker to return to his home country.
The employee is technically out of status immediately after his employment ends. Recently, there was a myth circulating in the immigrant community about a so-called "10 day grace period" in which a foreign national had ten days to find another employer and still maintain his status. Actually, the misunderstanding about a 10 day grace period arises from a section in the Regulations that permits an immigration inspector to admit an H-1b worker for the period authorized by the INS plus an additional 10 days. Therefore, a person entering the U.S. could get an I-94 card that is valid for 10 days beyond his expiration date on the H-1b approval. However, this does not have any correlation to the situation where the H-1b workers' employment ends before his status expires. As such, the employee has three options when he is terminated. First, he can immediately file a new H-1b for a new employer. Second, he can file a change of status to another temporary status if he is eligible for another temporary status. Third, he can leave the United States.
A company's obligations and rights regarding an H-1b worker who is fired during the green card process varies depending upon which stage the H-1b worker is at in the green card process. For most employees, the green card process is a three step process involving the labor certification stage, the I-140 Immigrant Petition stage, and the I-485 Adjustment of Status stage.
If the company fires an H-1b employee while he is in the labor certification stage, the employer does not have any duty to inform the Department of Labor. In fact, rather than informing the Department of Labor, the employer should allow the application to continue its normal processing to preserve its right to substitute another employee after the application is approved. However, in order to substitute an employee, the new employee has to do the same job with the same salary and he has to prove that he had all the job requirements before the application was filed. Since a labor certification is valid indefinitely, a company can use the application any time there is an employee that matches the requirement including the original employee if he later decides to rejoin the company.
If a company fires an H-1b employee while his is in the I-140 stage of the green card process, the employer can withdraw the I-140 petition and substitute another employee. The employer does not have to file another labor certification but simply files another I-140 petition on behalf of the new employee. Obviously, the new employee has to meet all the requirements at the time the initial labor certification application was filed. The INS Regulations do not impose any affirmative duty on the company to withdraw the I-140 petition as the employer has no plans to substitute another employee for the application.
If a company fires an H-1b worker after the I-140 petition is approved but before the I-485 application is filed, the employer may withdraw the I-140 petition and substitute another employee. The original employee would have to file another application with his new employer but he would be able to keep his filing date ("priority date") from the application with the first employer.
More than a year ago, Congress passed the American Competitiveness in the Twenty-First Century Act that helps foreign nationals who leave their employment after the final stage of the green card process, the I-485 adjustment of status application, is filed. As such, an employee can still become a permanent resident provided that the job change occurs more than 180 days after the adjustment of status application is filed and the employee obtains new employment that is the "same or similar" to the original employment. Therefore, if a termination occurs during this period the employer can request the INS to withdraw the I-140 petition but it will have no effect on the employee's green card. At the present time, it is unclear whether the employer would be able to substitute another employee for the application. In theory this should not be allowed since doing so would allow two separate employees (the initial employee and the substituted employee) to "double dip" from the same application.
Of course, the complicated issue arises when a company fires a foreign national while he is in the last stage of the green card process but has not yet reached the 180-day point. There has been an inconsistency in theory of the green card process. On the one hand, the labor certification process is designed for a "prospective" job, meaning that an employee is not required to work for the employer throughout the green card process as long as he has the intention of joining the company when the case is approved. On the other hand, the job offer must be a "permanent, full-time job offer" and if the job no longer exists the application will be denied. When Congress passed the American Competitiveness in the Twenty-First Century Act the intent was to provide foreign nationals with some job flexibility during long-delayed green card applications. The Act was never intended to grant a green card to foreign nationals who are fired before the adjustment of status application is pending for more than 180 days.
About The Author
Sherry L. Neal, Esq. is an immigration attorney with Hammond & Associates, LLC in Cincinnati, Ohio. She advises corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State and the Department of Labor. She is a member of the American Immigration Lawyers Association (AILA) as well as the American Bar Association, the Ohio State Bar Association, the Cincinnati Bar Association, and the Kentucky Bar Association. Sherry has written several articles on immigration topics that have appeared previously on http://www.ilw.com and other publications including The Cincinnati Bar Association Report, The Cincinnati Business Courier and the International Journal of Nursing Practice. Copies of the articles are available on the firm website at http://www.hammondlawfirm.com. Sherry can be reached directly by email at firstname.lastname@example.org
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