Immigration Issues with RIFs & Layoffs

December 1, 2008

Foreign national employees, such as those in H, E, L, and TN status are normally petitioned by employers to work in the U.S. for that specific employer. Their authorization to remain in the U.S. is in essence tied to their employment. If a foreign national is terminated, their authorization to remain in the U.S. ends. In addition, any dependent(s) of the employee also no longer have authorization to remain in the U.S. Once the employment relationship ends, the person is considered “out of status” because they are no longer “maintaining their status” by working for the petitioning employer. There is no grace period or time for them to wrap up loose ends before leaving. If the foreign national employee and/or their family fail to leave the U.S. when the employment ends they may be detained and placed in deportation proceedings. While some foreign national employees may be offered severance packages, the U.S. Citizenship and Immigration Service (CIS) does not consider a severance period to be the same as maintaining status.

Generally an employer is not required to notify the CIS if it terminates a foreign national employee, nor does it need to pay for the return transportation for the employee. The exception is a foreign national in H status. The employer is required to notify the CIS if there is a change in the terms and conditions of employment of the foreign national in H status. The employer of a foreign national in H status is also required to pay the return transportation for the employee if it terminates the employee before the date the foreign national’s H status would have expired. Employers are not required to pay for the return transportation for dependents or for personal effects.

Foreign nationals going through the green card process can also be affected by a RIF or layoff. Most employment-based green cards are based on an offer of future employment. In other words, the foreign national will hold “X” position with employer when they are issued a green card. If the foreign national being sponsored for an employment-based green card is terminated, the green card process would end unless there continues to be an offer of future employment. In addition, a foreign national can be affected if they are beginning the green card process and a RIF or layoff occurs. The first step of most employment-based green cards is a labor certification application. The application asks whether there has been a layoff in the area of intended employment in the occupation (the position the foreign national is being sponsored to fill) or in a related occupation within 6 months immediately proceeding filing the application. The Department of Labor’s regulations regarding the labor certification application define a layoff as “any involuntary separation of one or more workers without cause or prejudice. Includes but not limited to RIF, restructuring, downsizing”. A related occupation is defined in the regulations as “any job that requires workers to perform a majority of the essential duties involved for the sponsored position”. If there has been a layoff in the occupation or a related occupation within 6 months of filing the labor certification application, the employer must document that it has notified and considered all potentially qualified laid-off U.S. workers. The employer must also document the results of the notification. If a U.S. worker meets the minimum requirements for the sponsored position the labor certification application cannot be filed on behalf of the foreign national.

RIFs and layoffs involve a host of labor and immigration issues. If you have any questions about this Advisory, please contact any member of the Frost Brown Todd Immigration Practice Group.

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