Are there special rules for laying off H-1B visa workers? 12-04-01
The American Competitiveness in the Twenty-First Century Act of 2000 prohibits companies from laying off U.S. workers within 90 days of hiring an H-1B visa worker in the same job classification. After that, the law is silent on what an employer should do in the case of a general layoff.
Employers should not use visa status as a reason to pick someone for layoff. However, the H-1B regulations make clear that these employees are temporary workers. An employer usually should lay off temporary workers before laying off regular employees.
The employer also can use other objective criteria and apply it to H-1B and U.S. workers alike.
If H-1B visa workers are laid off, employers have three important duties:
- Offer to pay the air fare of the workers back to their home countries, and
- Give immediate notice to the U.S. Immigration and Naturalization Service of the termination of employment, and
- Don't discriminate in severance or other termination benefits.
The legal requirement to offer to pay air fare to the home country is very specific, and applies whether the company originally recruited the employees from abroad, or hired them within the U.S.
The requirement is also very narrow. A company is only required to pay one-way air fares for the workers, not their dependents, nor any additional shipping costs.
Since many non-immigrants in this situation elect not to return to their home countries, companies can inform them of their right to obtain transportation through the company's travel agency, within 30 days of termination. The employer is then relieved of the obligation, and in most cases will not be out the money.
| Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first. |
