Login

Other

Terminations-Alien Worker Issues

Terminations/Lay-offs/Salary Reductions - Legal Issues for Employers of Alien Workers

Termination of Alien Employees with Visas or Pending Applications
Termination of U.S. Workers by Employer of Alien Workers

Reduction in Pay For Alien or U.S. Workers - Prevailing Wage Implications

Relocations/Transfers Of Alien or U.S. Workers - Prevailing Wage Implications
"Benching" Alien Workers for Lack of Work-Prevailing Wage Implications

Non-compete Agreements and Severance Agreements

Terminations/Lay-offs/Salary Reductions in General

Employers employing alien workers in visa classifications or in the permanent residency process have special considerations to review before implementing lay-offs, terminations, salary reductions, transfers or relocations. Alien workers are typically employed on H-1B visas, I-140/I-485 adjustment of status applicants, E-3 and other H visas. Employers must thoroughly analyze the impact of lay-offs, terminations or salary reductions on its present and future employment of alien workers before implementing such. Employers should review various issues involving documents filed with and representations made to the U.S. Department of Labor and the USCIS.

Termination of Alien Employees with Visas or Pending Applications

In most instances, the USCIS and Department of Labor require immediate notification of the termination of an alien who has a non-immigrant visa or who has a green card petition pending. Upon notification, the USCIS or Department of Labor likely terminates the alien's application or visa status. Where required, proper notification must be made promptly and to the appropriate agency and location. In some instances, the employer may be responsible for the costs and expenses of returning the alien employee to his native country if the deportation/removal results from the termination of his employment.

Termination of U.S. Workers by Employer of Alien Workers

Even where termination or change in the terms of employment only affect U.S. workers, an employer who also employs aliens should still analyze the impact of the lay-offs or change in terms of employment of U.S. workers on its visa applications for alien workers. For example, a PERM labor certification application for alien employees may be adversely affected by a lay-off of U.S. workers. Future PERM applications may also be adversely affected. Similarly, an H-1B employer's H-1B dependency status may change as a result of the termination of U.S. workers, triggering different compliance and attestation requirements. Finally, termination of U.S. workers may trigger Department of Labor complaints by terminated employees especially if alien employees remain employed. Employers of aliens need to review their compliance with all of the various requirements prior to making drastic employment decisions.

Reduction in Pay For Alien or U.S. Workers - Prevailing Wage Implications

Employers who have filed PERM labor certification applications or H-1B visa applications or labor condition applications must thoroughly analyze the impact of a reduction in pay of its workforce on the prevailing wage requirements. Employers are often required to pay alien workers "prevailing wage." A reduction in the pay of alien workers without a thorough review of the prevailing wage implications may result in a violation of Department of Labor and/or USCIS regulations with respect to the payment of prevailing wage.

Relocations/Transfers Of Alien or U.S. Workers - Prevailing Wage Implications

Prevailing wage determinations are generally based on the wages paid in a particular area, city or locality. If employees are transferred or relocated, the prevailing wage for their positions in the new locality may be higher than or different from that in the location from where they transferred. To comply with Department of Labor regulations, an employer may need to review the prevailing wage for the transferred occupations to ensure compliance.

In addition, employers of alien workers should analyze the notice requirements for the various pending immigration petitions to determine whether additional postings are necessitated by the move. Notice and posting requirements are found in H-1B applications, PERM labor certification applications, national interest waiver petitions as well as other employment applications. Finally, employers of H-1B visa holders and PERM labor certification applicants should re-evaluate the location where the recruitment and public access files will be kept in light of the move.

"Benching" Alien Workers for Lack of Work-Prevailing Wage Implications

Employers who are considering benching alien workers or H-1B holders must carefully evaluate the situation with an experienced immigration attorney to explore the risks of such. In some instances and if done improperly, an employer may be subjected to hefty back pay determinations and fines by the Department of Labor.

Non-compete Agreements and Severance Agreements

U.S. employers terminating alien workers should review the non-compete agreements entered into with employees to determine the impact of such on the alien's ability to change their visa status or transfer the status to another employer to retain his stay in the United States. Frequently, work visas are linked to continued employment by the sponsoring employer. Termination of such an alien may result in his loss of visa status. A non-compete agreement that makes it difficult to accept alternative employment may prevent the alien from obtaining an alternative position quickly to which his visa status may be transferred. Where appropriate, a severance agreement may be negotiated to assist both the employer and alien employee reach a mutually beneficial understanding.

Severance Agreements For H-1B Visa Holders, Green Card Applicants (I-140/I-485) And Other Alien Work

 Alien Worker Severance Agreements - In General
Alien workers and their employers who negotiate severance agreements have several issues to consider in addition to those that apply in normal circumstances. In many instances, an alien’s ability to remain in the United States or change employers (Port) under AC21 is dependent on the alien’s ability to maintain his visa status by remaining employed by the sponsoring employer. Upon losing the sponsoring employment, an alien may go out of status or have a break in his visa status.

Alien Worker Severance Agreements - Loss of Visa Status And Portability
An abrupt termination of the employment relationship will likely result in a loss of immigration status for visas that are linked to specific employment status such as the H-1B, L-1, J-1 and E-3 visa. For H-1B visa holders and I-140/I-485 applicants, a disruption of employment may cause the alien not to be able to port either the I-140/I-485 petition or H-1B visa. With the loss of non-immigrant visa status, an alien may be placed in deportation or removal proceedings, terminating their ability to remain in the United Stated. Alien Worker Severance Agreements - Employer Payment of Deportation Costs
Where an employer’s termination of an H-1B visa holder results in the deportation of the alien at the government’s expense, such an employer may be responsible for all of the deportation costs resulting from the termination of the alien’s employment. Special Considerations In Negotiating Alien Worker Severance Agreements
In negotiating a severance agreement where the employee-alien is on an H-1B visa or has a green card petition (I-140/I-485) pending, the employer and alien employee should consider the following:

  •  Whether the alien’s visa status will end as a result of the termination and whether the employee can remain in valid immigration status long enough to secure other employer to which his/her visas can port.
  • In I-140/I-485 portability cases, a determination should be made whether the I-140 is approved and whether the I-485 has been pending for 180 days to facilitate AC21 portability of the green card petition.
  • Whether a mutual accommodation can be reached by the employer and employee to avoid possible loss of visa status by the employee and eliminate the likelihood of the employer’s liability for deportation/removal costs in the event that the alien is removed.

Severance Agreements - Protecting The Alien Worker And His Employer
Where possible, the employer and employee can negotiate an agreement that benefits both parties. The employer may obtain a severance agreement wherein the employee agrees to give up any rights to sue the employer in connection with his/her employment and termination. In return, the employer may agree to an additional period of employment of the alien to permit the alien time to obtain a new job and transfer his/her visas to the new employer and retain his visa status.

Drafted carefully and cooperatively, such a severance agreement may provide adequate protection to the employer as well as the employee whose stay in the United States does not terminate as a result to the termination of his/her employment.

In addition to these considerations, please review a discussion of [Severance Agreements] in general terms for an overview of the entire process.

Non-Compete Agreements/Restrictive Covenants For H-1B Visa Holders, And Other Alien Workers

Alien Worker Non-Compete Agreements - In General
Alien workers and their employers who negotiate non-compete agreements/Restrictive Covenants have several issues to consider in addition to those that apply in normal circumstances. In many instances, an alien’s ability to remain in the United States or change employers (Port) under AC21 is dependent upon the alien’s ability to maintain his visa status by remaining employed by the sponsoring employer. Upon losing the sponsoring employment, an alien may go out of status or have a break in his visa status.

A non-compete agreement that does not permit an employee to work in the same or similar position for another employer may effectively preclude the affected alien from remaining in the United States. When an alien-employer seeks to transfer his/her work visa to another employer, he/she must often show that his transfer is to the same or similar position with the new employer. Where a non-compete agreement precludes the alien employee from accepting such a position, he/she may have significant difficulty transferring his/her visa to a position that is not similar.

Additionally, non-compete agreements frequently have a clause that precludes certain types of employment for a duration. For most employment visa holders, any break in employment may result in the loss of visa status. An alien with an employment visa who remains unemployed for the time specified in the non-compete agreement is likely to lose his/her visa status.

Alien Worker Non-Compete Agreements - Loss of Visa Status And Portability
An abrupt termination of the employment relationship and inability to immediately accept similar employment elsewhere will likely result in a loss of immigration status for visas that are linked to specific employment status such as the H-1B, L-1, J-1 and E-3 visa. For H-1B visa holders and I-140/I-485 applicants, a disruption of employment may cause the alien not to be able to port either the I-140/I-485 petition or H-1B visa. With the loss of non-immigrant visa status, an alien may be placed in deportation or removal proceedings, terminating his ability to remain in the United Stated.

Alien Worker Non-Compete Agreements - Employer Payment of Deportation Costs
Where the termination of an H-1B visa holder occurs and the alien is unable to accept similar employment elsewhere to transfer his visa, he may be deported at the U.S. government’s expense. The terminating employer may be responsible for all of the deportation costs resulting from the termination of that alien’s employment.

Special Considerations In Negotiating Alien Worker Non-Compete Agreements
In negotiating a non-compete agreement where the employee-alien is on an H-1B visa or has a green card petition (I-140/I-485) pending, the employer and alien employee should consider the following:

  • Whether the non-compete agreement is so restrictive that it will essentially preclude the alien from obtaining similar alternative employment upon termination resulting in the loss of the alien’s immigration status by precluding a visa transfer.
  • Whether the duration of the restriction is so long that a significant break in employment status will result causing the alien visa holder to go out of visa status.
  • Whether the alien’s visa status will end as a result of the termination and whether the employee can remain in valid immigration status long enough to secure other employer to which his/her visas can port.
  • In I-140/I-485 portability cases, a determination should be made whether the I-140 is approved and whether the I-485 has been pending for 180 days to facilitate AC21 portability of the green card petition.
  • Whether a mutual accommodation can be reached by the employer and employee to avoid possible loss of visa status by the employee and eliminate the likelihood of the employer’s liability for deportation/removal costs in the event that the alien is removed.

Non-Compete Agreements - Protecting The Alien Worker And His Employer
Where possible, the employer and employee can negotiate an agreement that benefits both parties. The employer may obtain a non-compete agreement wherein the employee agrees to give up additional rights. In return, the employer may agree to modify the non-compete agreement to permit similar alternative employment where employment is terminated without notice. The employer may also shorten the period of the restriction in exchange for an amount from the alien employee in liquidated damages.

Drafted carefully and cooperatively, such a non-compete/restrictive covenant may provide adequate protection to the employer as well as the employee whose stay in the United States does not terminate as a result to the termination of his/her employment.

In addition to these considerations, please review a discussion of [Non-Competes/Restrictive Covenants] in general terms for an overview of the entire process.

Flat Fee Representation for Employees, Independent Contractors and Agents

Our firm provides cost-effective representation for employments matters. We offer flexible payment arrangements to reduce the overall cost to our clients. Clients have the ability to seek representation based on our normal hourly rates or flat-fee arrangements, where feasible. Upon request, we provide the following services at flat fees for employees:o Review Of Severance, Termination Or Non-compete

  • Review Of Employment Contract/Agreement
  • Review Of Settlement Agreement (review only) 
  • Conference For Legal Advice/Guidance On One Work-Related Issue 
  • Consultation With Employee Under Harassment Investigation 
  • Consultation On Office/Co-worker Dating Policies And Issues 
  • Attendance of Mediation, Fact-finding Or Settlement Conference 
  • Written Case Evaluation, Opinion And Recommendation

[Contact Form]

Flat Fee Representation for Employers and Businesses

Our firm provides cost-effective representation for employments matters. We offer flexible payment arrangements to reduce the overall cost to our clients. Clients have the ability to seek representation based on our normal hourly rates or flat-fee arrangements, where feasible. Upon request, we provide the following services at flat fees for employers:

  • Drafting Standard Termination Agreement
  • Drafting Standard Settlement, Non-compete Or Employment Agreement
  • Drafting Employment Handbook
  • Drafting Discrimination/Harassment Policies And Postings
  • Preparation/attendance of EEOC/IDHR/CCCHR mediation conference
  • Preparation/Attendance-Settlement Conference
  • Preparation/Attendance-EEOC/IDHR/CCCHR Fact-Finding Conference
  • Sexual Harassment Training/Seminar
  • Unemployment Hearing Defense
Please call, e-mail or complete our Contact Form and include a brief description of the matters you wish to consult us on so that we may provide a flat fee rate for the consultation. We offer evening and weekend appointments (at a higher rate) for your convenience.

[Contact Form]

Page 1 of 3

Disclaimer: The materials in Asonye & Associates web site have been prepared to permit visitors to our web site to learn more about the services we offer. These materials do not, and are not intended to, constitute legal advice. Neither transmission nor receipt of such materials will create an attorney-client relationship between the sender and receiver. Internet subscribers and online readers are advised not to take or refrain from taking any action based upon materials in this web site without consulting legal counsel. We do not undertake to update any materials in our Web Site to reflect subsequent legal or other developments.