Musings on Immigration

We are frequently asked what obligation does an employer have when it terminates a foreign national employee, and what options are available to the foreign national employee if he is terminated.  This memo provides guidance to employers in dealing with immigration matters for the employee who is terminated, with or without cause, or who chooses to leave the employer.  Employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated. The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national nonimmigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common nonimmigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation.” L visas are used for in...

By Anna Erwin, Associate Attorney Has your employment been terminated while under H-1B status or have you terminated an H-1B employee? The standards under immigration law for what a previous H-1B employee can receive in back wages after termination are now significantly affected by whether the employee obtains subsequent employment after termination. H-1B status is of particular benefit to foreign national employees in the U.S. because they can transfer their status to a new employer. An H-1B transfer employee also benefits the employer because that transferred employee does not count against the H-1B visa cap for that year.  But if the employer/employee relationship is terminated during the employee's H-1B status, both sides must be aware of back wage eligibility or liability. The Basis for Back Wage Liability In Amtel Group v. Florida, Inc., the Administrative Review Board found that for an employer to avoid liability after the termination of an H-1B employee, th...