Foreign Workers: Tips For Hiring—And Firing—Workers On H-1B Visas

Many employers that hired foreign workers on H-1B visas during boom times are now struggling with how to lay them off in light of the economic downturn. And other employers are contemplating hiring H-1B visa holders who are now looking for work. We’ll detail your special obligations when hiring or terminating workers on H-1B visas.

Hiring Workers Sponsored By Another Employer

If you’re considering hiring an H-1B visa worker who was laid off or wants to change jobs, keep these rules in mind:

1. Employees can change jobs without INS approval. Recent changes in immigration law allow workers on H-1B visas to take new jobs as soon as the Immigration and Naturalization Service receives their transfer application rather than wait sometimes months for the INS to approve the transfer. To expedite the process, the employer can send the application to the INS by express mail delivery and request e-mail confirmation of receipt from the agency, advises Oakland attorney Robert Baizer. You can then immediately hire the worker without waiting for the agency OK. Note that you still need to get actual approval when the transfer application is processed. For a $1,000 premium processing fee, you can receive approval within 15 days.

    

2. Problems arise if there are gaps in employment. Workers can transfer their visa to another employer if there’s no break in employment. But the law contains no official grace period to allow laid-off workers time to find another job. A worker’s visa status is officially out of compliance as soon as the person is laid off. And workers must show they are maintaining their current visa status for the INS to approve a transfer to another sponsoring employer. Workers who are “out of status” are technically required to return to their home country before applying for approval of a new employer sponsor. But Baizer says that some INS officers allow workers 30 to 60 days to find new employment before requiring them to return home.

    

3. Post notice for 10 days. When you submit a Labor Condition Application (LCA) to hire H-1B visa workers, you must post a notice listing the job title and salary of positions that would be held by H-1B visa workers. It has to remain posted for 10 days in a place where your employees can see it. The notice can cover a number of employees in the same position. After 10 days, you must keep the notice in an H-1B visa public access file.

    

4. Document prevailing wages. In your LCA you must agree to pay the prevailing wage in your industry. Your public access file must contain copies of the LCA and the wage survey you based your prevailing wage determination on. The file must also contain a statement outlining your company’s wage structure. According to Baizer, a general statement that company wages are based on qualifications, experience, education and similar factors is sufficient. Keeping this wage information up-to-date will help you defend your pay practices if an H-1B visa worker complains to the U.S. Department of Labor that they are paid less than the prevailing wage.

400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.

Terminating Workers

If you no longer have work for an H-1B visa employee, keep in mind:

1. Benching workers is prohibited. In an effort to buy these foreign workers time to find another job, some employers who implement layoffs or other cost-cutting measures may be tempted to “bench” an H-1B worker. That is, they would stop paying them when there is no work without actually firing the worker and terminating their visa sponsorship. However, Baizer says that benching workers on H-1B visas is prohibited, and continuing as the worker’s sponsoring employer for visa purposes can leave you open to claims for back wages. That’s because you’re obligated to pay a worker you sponsor at the prevailing wage until you withdraw the visa petition. Therefore, if no work is available, be sure to immediately notify the INS to vacate the visa. Also, try to give H-1B visa employees as much advance notice as possible before a layoff so they can look for another job while still on your payroll.

    

2. Paying cost of return trip. When you terminate an H-1B worker, you’re technically obligated to pay the cost of the worker’s return to their home country. But most workers prefer to stay in the U.S. and find another employer.