When it comes to laying off an H-1B visa employee, employers have different responsibilities than those they face with the layoff of a “regular” employee.

The laid-off employee also has immediate challenges. The employee has a discretionary 60-day grace period to try and resolve the situation through one of the following three options:

• find a new employer to file an H-1B petition,
• file an application to change their visa status, or
• leave the United States.

Any employee who ignores the rules by overstaying their visa or otherwise violating the law, risks becoming “out of status” and is likely to face issues with any future immigration application and/or deportation.

Employers, on the other hand, face their own H-1B compliance requirements. An employer laying off an H-1B employee must:

• Provide the employee with clear notification of termination. The notice must be in writing and clearly state that the employment relationship has ended.
• Notify the U.S. Citizenship and Immigration Services (USCIS). The H-1B employer must notify the United States Citizenship and Immigration Service (USCIS) in writing of the termination of employment. Notice should be sent to the USCIS director and include the following information: name of the visa holder, a statement that the employee no longer works for you as of a certain date and a request to revoke the H-1B petition.
• Notify the Department of Labor.  An employer must also notify the Department of Labor (DOL) of the withdrawal of the labor condition application (LCA) filed prior to the H-1B petition. An employer can address this issue through the LCA online portal, via email, or by written letter.
• Provide reasonable transportation costs to the employee. The employer is obligated to provide a reasonable cost of transportation for the employee to return to his/her last place of residence prior to the beginning of her or his contract working in the United States. The transportation cost does not include moving expenses for personal belongings or travel for extended family members.

A layoff is difficult for both employee and employer. When it involves an employee holding an H-1B visa, the anxiety level is likely to be increased dramatically. The H-1B visa employee is likely to have many questions about what the layoff may mean for his or her status and may turn to you even after they have been let go to discuss or clarify their concerns.

Given the specialized nature of the immigration law in the H-1B visa, we encourage any HR professional facing this issue to speak with immigration counsel to ensure that compliance with the law.