Laying Off
Foreign Workers
Essential Compliance Steps for Employers
As an employer hiring foreign workers, you are under additional legal obligations that do not apply to U.S. workers when it comes to termination. This guide summarizes your obligations and the steps you need to take when laying off a foreign worker, organized by their visa category.
H-1B Specialty Occupation Category
The H-1B visa category is the most common visa category employers use to hire foreign workers in the U.S. In addition to the prevailing wage, worksite location, actual wage, and position obligations you must comply with when filing an H-1B petition, there are additional obligations you must adhere to when laying off an H-1B worker to remain compliant with the laws and regulations.
Employer Obligations Upon H-1B Termination
When terminating an H-1B employee, employers must fulfill several specific legal requirements. Failure to comply with these obligations can result in audits, penalties, and other enforcement actions by USCIS or the Department of Labor.
Required Obligations
- Provide written notice of termination with the last day of employment clearly identified.
- Pay the reasonable costs of a return trip home if the foreign employee fails to find new employment within 60 days or change to a different status.
- Withdraw the Labor Condition Application (LCA) within 10 days of termination of employment.
- Submit a written request to USCIS to withdraw the H-1B petition.
- Save the foreign worker's Public Access File for a full year after the last day of employment in the event of an audit by USCIS or DOL.
How Does This Look in Practice?
Following the steps below will help ensure you remain compliant throughout the termination process for an H-1B worker.
Step 1: Verify Wage Compliance
Ensure you have been paying the foreign worker the actual wage (offered wage) listed on the Labor Condition Application up to the last day of employment.
Step 2: Provide Written Notice
Provide the foreign worker with written notice of their anticipated last day of employment. Communicate the reason for the termination and discuss any concerns they might have.
Step 3: Communicate Return Transportation Obligation
Inform the foreign worker that you, the employer, will provide a reasonable plane ticket to their home country if they must leave the U.S. because they are unable to secure new employment or file a change of status within the 60-day grace period granted to them by law.
Step 4: Understand the Limits of the Travel Obligation
You are only obligated to provide a plane ticket if the foreign employee decides to leave the country. If they find new employment or file a change of status to a different visa category, you are not obligated to provide them with a plane ticket.
Step 5: Notify Your Immigration Team
Communicate with your immigration team about the foreign worker's last day of employment so they can withdraw the LCA and H-1B petition on your behalf.
Step 6: Preserve the Public Access File
Communicate with your immigration team about the Public Access File if you have any questions. They will assist you with the proper steps to save it for the full year post-employment.
Why This Matters
The 60-day grace period is a critical window for the foreign worker. During this time, they may seek new H-1B sponsorship, change to a different visa status, or make arrangements to depart the U.S. Your obligation to offer return transportation only applies if the worker ultimately chooses to leave the country.
H-1B1 and E-3 Free Trade Visa Categories
If you hire foreign workers in H-1B1 status (reserved for citizens of Singapore and Chile) or E-3 status (reserved for Australian citizens), many of the same LCA-based obligations apply — but with some important differences from the standard H-1B process.
Employer Obligations for H-1B1 and E-3 Workers
Because the H-1B1 and E-3 visa categories are also based on the Labor Condition Application (LCA), employers must follow many of the same steps outlined for H-1B workers. However, there is one key difference: you are not obligated to pay the cost of a return plane ticket for H-1B1 or E-3 workers.
The foreign worker still has the 60-day grace period to find new employment, change their status, or leave the United States.
Key Employer Obligations
- Notify the foreign worker in writing of the last day of employment.
- Withdraw the LCA with the Department of Labor.
- If the E-3 or H-1B1 petition was filed at a USCIS service center, send a written withdrawal request to USCIS.
- No obligation to pay for return transportation.
H-1B vs. H-1B1/E-3 Termination Obligations
| Obligation | H-1B | H-1B1 / E-3 |
|---|---|---|
| Written notice of termination | Required | Required |
| Withdraw LCA with DOL | Required (within 10 days) | Required |
| Withdraw petition with USCIS | Required | Required (if filed at service center) |
| Pay for return transportation | Required (if worker departs) | Not required |
| 60-day grace period for worker | Yes | Yes |
TN USMCA Free Trade Visa Category
If you hire foreign workers in TN status (reserved for citizens of Canada and Mexico), the termination process is significantly simpler for employers compared to LCA-based visa categories.
Employer Obligations for TN Workers
Employers are not under any legal obligations to notify the government or provide any assistance to a TN worker for their return to their home country upon termination. The responsibility falls on the foreign worker to notify the border or customs agent when they exit the U.S. of their last day of employment with the company.
Minimal Employer Obligations
Unlike H-1B, H-1B1, and E-3 categories, TN status does not involve a Labor Condition Application. As a result, there is no LCA to withdraw, no petition withdrawal to file with USCIS, and no obligation to pay for return transportation. The foreign worker bears the responsibility for notifying border authorities upon departure.
E-2 and E-1 Treaty Visa Categories
If you hire foreign workers in E-2 (Treaty Investor) or E-1 (Treaty Trader) status as employees of your E Treaty company, your obligations upon termination are limited.
Employer Obligations for E-1 and E-2 Workers
Upon termination of an E-2 or E-1 employee, you may inform the consulate where their visa was issued of the termination of their employment. You are not obligated to provide them with any additional assistance for their return home or for changing their status in the United States.
Key Points
- You may optionally notify the consulate where the worker's visa was issued about the termination.
- No obligation to provide return transportation or other departure assistance.
- No obligation to assist with changing the worker's immigration status.
Summary of Obligations by Visa Category
The following summary provides a quick-reference comparison of employer obligations across all visa categories covered in this guide.
At-a-Glance Comparison
Employer Termination Obligations by Visa Category
| Obligation | H-1B | H-1B1 / E-3 | TN | E-1 / E-2 |
|---|---|---|---|---|
| Written notice to worker | Required | Required | Not required | Not required |
| Withdraw LCA with DOL | Required | Required | N/A | N/A |
| Withdraw petition with USCIS | Required | If filed at service center | Not required | Not required |
| Return transportation costs | Required (if worker departs) | Not required | Not required | Not required |
| Retain Public Access File | 1 year post-employment | 1 year post-employment | N/A | N/A |
| Notify consulate | N/A | N/A | N/A | Optional |
Need Assistance?
If you have any questions about your obligations when laying off a foreign worker, please reach out to the Serotte Law Team. Proper compliance during the termination process is essential to avoid penalties and protect your company.
Need Personalized Guidance?
Our experienced immigration attorneys can guide you through every step of the process. Schedule a consultation to discuss your specific situation.
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