The changed economic situation has affected many companies across the country. Particular attention must be given to the employer responsibilities to terminated workers and the requirements for hiring workers who have been terminated from a prior H-1b employer.

Employer Responsibilities to a Terminated H-1b Worker

1. Provide the employee with the reasonable cost of transportation to his or her country. The requirement was part of the I-129H application submitted to INS. INS does not enforce this provision; rather, it is considered a civil matter between the company and the H-1b worker. When a terminated employee secures new employment, it appears that any responsibility of the employer for return transportation would cease.
2. The employer must continue to compensate the H-1b worker until the employer notifies INS of the withdrawal of the H-1b petition. This office will, upon your instruction, withdraw the H-1b petition. INS has issued conflicting notices in this area. However, the better practice is to notify INS of the withdrawal of the petition.
3. H-1b workers must be offered the same benefits package provided to all other terminated workers. It has not yet been determined if H-1b workers must be provided equal severance packages.
4. The company must evaluate the number of foreign H-1b workers to determine if it comes within the classification of a H-1b dependent employer.
5. The material previously provided as part of the public access file must be maintained for one (1) year past the termination date.

Obtaining Alternate Status

At present, when the H-1b worker leaves the employment of the sponsoring company, that individual is out of status. The INS has indicated it will examine each case on an individual basis regarding the maintenance of status of H-1b workers.

It may be advisable for a H-1b worker to secure a B-2 visitor visa immediately upon receiving termination notice. The B-2 status would allow the worker to seek alternate employment in the US via a job search.

Hiring a Laid-Off H-1b Employee

If a new employer seeks to hire a recently laid-off H-1b employee, a review of the prior immigration status is required. An employee, depending on the severance package, may be able to use the new portability rules that allow an H-1b individual to begin working at a new company if the following conditions are met: 1) the individual is in lawful status at the time of filing; and 2) the individual has not engaged in un-authorized employment since the last lawful admission.

Some service centers have requested current payroll records to document the continued employment of the H-1b candidate.

The 10-Day Myth

INS continues to issue conflicting statements regarding the existence of a "grace period" for laid off H-1b employees. Most recently (June 19, 2001, reproduced at 78 Interpreter Release 1109 of July 2, 2001) INS has stated that no grace period currently exists but that it may introduce one in the future.

This office will be available to discuss and evaluate the regulations at greater length or to review the issues with affected employers.