Dec 20, 2023 General Employment Issues

What Are an Employer’s Obligations When Terminating a Non-Citizen Employee?

When an employer decides to terminate a non-U.S. citizen employee, it must consider not just employment laws but immigration laws. Under U.S. immigration laws, employers have varying obligations depending on whether the employee is a permanent resident (green card holder) or employed under a temporary work visa. These rules can be complicated, and employers should consult an immigration attorney to ensure they are in compliance.

Terminating a Permanent Resident Employee

Employers do not have any special obligations under immigration law when terminating an employee with a green card. Such individuals should be treated the same as an employee who is a U.S. citizen.

However, if the employee is still going through the employer-sponsored green card process, different rules may apply, especially in relation to how the employee can benefit, if at all, from the work done to date. Generally, an employer is not required to continue the green card process or notify the U.S. Citizenship and Immigration Service (USCIS) that the employer will no longer sponsor the employee for permanent residency. However, there are different considerations for the employer depending on where the parties are in the green card process. It is a fact-specific analysis, and employers should discuss it with an immigration lawyer before taking action.

Terminating an Employee with a Temporary Work Visa

If an employer plans to terminate an employee with a temporary work visa, there usually must be a bona fide termination. If not, the employer may be liable for back pay. The requirements for a bona fide termination differ based on the type of temporary work visa but typically include one or more of the following:

  1. Written notice to the employee;
  2. Written notice to USCIS (if a petition was filed with USCIS);
  3. Payment of return transportation costs to the employee’s home country; and
  4. Withdrawal of the Labor Condition Application.

Providing written notice to employees is always recommended regardless of whether it is legally required. 

For employees with H-1B, H-1B1, and E-3 visas, employers must comply with #1-3 listed above. It is good practice to comply with #4 as well, though it is arguably not required.

For O-1 visa employees, #2 and #3 are required.

For TN and L-1 visa employees, employers do not have to comply with any of the above requirements.

Similarly, for E-1 and E-2 visa holders, there are no requirements. However, employers may consider notifying the U.S. embassy that issued the visa.

Employee Considerations

When an employee with a temporary work visa is terminated (or voluntarily leaves their employment), they have a grace period to look for another job, apply for a different immigration status, or depart the U.S. Generally, the grace period is 60 days from termination or the expiration date as listed on the employee’s I-94 record, whichever is shorter. Employers may want to keep this in mind when deciding the effective date of an employee’s termination.

Employment Law Considerations

Federal, state, and local employment laws apply to all non-citizen employees. As a result, employers should ensure that they do not terminate an employee for an unlawful reason. We recommend they consult an employment law attorney as needed.

If you have questions about your obligations toward non-citizen employees under immigration law, contact us for a consultation. We have extensive experience advising employers in all areas of immigration law and can help you minimize risks to your business.