The Immigration Letter Employers Forget to Send After Termination

When an employee on a visa leaves his or her job—whether voluntary or not—there’s an immigration letter most employers forget to send. That mistake could cost them penalties and back pay.

Here’s what a lot of employers don’t know:

For all visa types, when there is a termination, layoff, or resignation, the employer is required to notify USCIS of this separation in writing. Eventually, USCIS will send a letter to the employer that confirms the withdrawal.

In addition, if there is a Labor Condition Application (LCA) on file (i.e. for H-1B or E-3 visas), the employer or its legal counsel must withdraw the LCA with the Department of Labor (DOL). Otherwise, the employer will be “on the hook” for potentially tens of thousands of dollars.

The employer risks owing significant financial penalties in the form of back pay because the DOL considers the wage obligation to continue until the LCA is formally withdrawn. This could continue for the entire authorized period, even if the employee is terminated.

Imagine owing wages for the rest of a three-year period, even after an employee was terminated in year one. This could be avoided with the simple step described above.

However, most employers don’t do this. Some don’t even know it’s required.

Here’s where it gets complicated for both parties.

For example: an employer lays off an employee on an H-1B visa on December 31st.

The employee has a discretionary 60-day grace period to find a new job or change status. The employer is immediately obligated to notify USCIS and cancel the petition, and the DOL to withdraw the LCA.

Meanwhile, the employee may be hoping the employer does not notify the agencies, because it could terminate his or her status and leave him or her vulnerable to receiving a Notice to Appear from Immigration Court — even while legal on a grace period. That could lead to serious immigration consequences for the former employee.

This creates conflicting interests about when to notify government agencies; however, it is ultimately the employer’s responsibility to end its immigration obligations to avoid potential liability.

Another wrinkle for H-1B employers is that they must offer, in writing, reasonable return transportation to the employee’s last residence. If the employee transfers his or her visa to a new employer within the grace period and remains in the U.S., this will relieve the first employer of this obligation.

If you need help with employer immigration compliance, reach out. Call (949) 940-6725, or book a consultation online to speak with one of our experienced immigration attorneys.

DISCLAIMER: This post does not constitute legal advice, or make any guarantees as to a potential outcome. Consult with a qualified, licensed immigration attorney about the facts of your case before proceeding.