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After The Termination: What's Next?
by Sherry L. Neal
Published on ILW.com
In this current climate of layoffs and terminations a company must fulfill
its obligations concerning foreign workers. A company that fires a foreign
worker has certain obligations regarding both the temporary visa and the
green card application. For example, when a company fires an employee who is
on an H-1b temporary visa the company must notify the INS by withdrawing the
H-1b petition. The employer must also pay the transportation for the foreign
worker to return to his home country.
The employee is technically out of status immediately after his employment
ends. Recently, there was a myth circulating in the immigrant community
about a so-called "10 day grace period" in which a foreign national had ten
days to find another employer and still maintain his status. Actually, the
misunderstanding about a 10 day grace period arises from a section in the
Regulations that permits an immigration inspector to admit an H-1b worker
for the period authorized by the INS plus an additional 10 days. Therefore,
a person entering the U.S. could get an I-94 card that is valid for 10 days
beyond his expiration date on the H-1b approval. However, this does not have
any correlation to the situation where the H-1b workers' employment ends
before his status expires. As such, the employee has three options when he
is terminated. First, he can immediately file a new H-1b for a new employer.
Second, he can file a change of status to another temporary status if he is
eligible for another temporary status. Third, he can leave the United
States.
A company's obligations and rights regarding an H-1b worker who is fired
during the green card process varies depending upon which stage the H-1b
worker is at in the green card process. For most employees, the green card
process is a three step process involving the labor certification stage, the
I-140 Immigrant Petition stage, and the I-485 Adjustment of Status stage.
If the company fires an H-1b employee while he is in the labor certification
stage, the employer does not have any duty to inform the Department of
Labor. In fact, rather than informing the Department of Labor, the employer
should allow the application to continue its normal processing to preserve
its right to substitute another employee after the application is approved.
However, in order to substitute an employee, the new employee has to do the
same job with the same salary and he has to prove that he had all the job
requirements before the application was filed. Since a labor certification
is valid indefinitely, a company can use the application any time there is
an employee that matches the requirement including the original employee if
he later decides to rejoin the company.
If a company fires an H-1b employee while his is in the I-140 stage of the
green card process, the employer can withdraw the I-140 petition and
substitute another employee. The employer does not have to file another
labor certification but simply files another I-140 petition on behalf of the
new employee. Obviously, the new employee has to meet all the requirements
at the time the initial labor certification application was filed. The INS
Regulations do not impose any affirmative duty on the company to withdraw
the I-140 petition as the employer has no plans to substitute another
employee for the application.
If a company fires an H-1b worker after the I-140 petition is approved but
before the I-485 application is filed, the employer may withdraw the I-140
petition and substitute another employee. The original employee would have
to file another application with his new employer but he would be able to
keep his filing date ("priority date") from the application with the first
employer.
More than a year ago, Congress passed the American Competitiveness in the
Twenty-First Century Act that helps foreign nationals who leave their
employment after the final stage of the green card process, the I-485
adjustment of status application, is filed. As such, an employee can still
become a permanent resident provided that the job change occurs more than
180 days after the adjustment of status application is filed and the
employee obtains new employment that is the "same or similar" to the
original employment. Therefore, if a termination occurs during this period
the employer can request the INS to withdraw the I-140 petition but it will
have no effect on the employee's green card. At the present time, it is
unclear whether the employer would be able to substitute another employee
for the application. In theory this should not be allowed since doing so
would allow two separate employees (the initial employee and the substituted
employee) to "double dip" from the same application.
Of course, the complicated issue arises when a company fires a foreign
national while he is in the last stage of the green card process but has not
yet reached the 180-day point. There has been an inconsistency in theory of
the green card process. On the one hand, the labor certification process is
designed for a "prospective" job, meaning that an employee is not required
to work for the employer throughout the green card process as long as he has
the intention of joining the company when the case is approved. On the other
hand, the job offer must be a "permanent, full-time job offer" and if the
job no longer exists the application will be denied. When Congress passed
the American Competitiveness in the Twenty-First Century Act the intent was
to provide foreign nationals with some job flexibility during long-delayed
green card applications. The Act was never intended to grant a green card to
foreign nationals who are fired before the adjustment of status application
is pending for more than 180 days.
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