08.06.10

Duty of Employer terminating an H1B worker

Posted in my view, Policy at 2:24 am by Lalita Haran

Labor certification approved but H1B worker laid off. Some thoughts on Employer Liability to the H1B employee from the point of view of immigration law:

Employment is becoming highly uncertain these days. The freedom of “at will” employment contracts and the only requirement to follow the notice period in case of termination should be somewhat restrained in hiring and firing of a foreign national. Employer should have some extra obligations to keep the worker informed of the immigration case to prevent himself from facing unlawful presence issues. At times employers may consider employee’s personal situation in determining or give prior information so the employee begins to consider alternative employment. But there are situations when an employer conceals or fails to disclose information within its knowledge and the worker has no other recourse but to leave the country at the end of his employment.

Immigration law allows a non immigrant foreign national 15 days to depart U.S. at the end of H1B period but no time at all if he is terminated. He then becomes deportable and so would his dependants because of unlawful presence. Many of these people have property which does not sell in such a short time and have children in school. These reasons were cited in the recent leaked out internal memo to the USCIS director Mayorkas that contained a proposal to extend the H1B grace period.

Often, employers are considerate to these foreign nationals because their life in U.S. is dependant upon their job. But not always. If the employer desires to hire the foreign national permanently it sponsors the worker by filing an employment based immigration petition after certification from the Department of Labor. The process is laborious and time consuming and the employer must file labor certification before filing the employment based petition I-140.

Porting to another employer is possible if the foreign worker waited for a specific period. Porting prevents tying of the foreign worker to the sponsoring employer. It was introduced by the government as an ameliorative measure to prevent exploitation of foreign workers. The employee could freely change jobs and is not required to stay with their sponsoring employer until approval of his permanent residence status.

Porting is not favored by employers and may be a reason for delay in employer filing the required immigration papers or conveying the government approval to the employee. Such a worker then stays with the employer. In the event of loss of employment he is then required to find a new employer who could sponsor him for a new non immigrant status. The entire process of job hunting coupled with loss of immigration status becomes very stressful.

Detrimental reliance under an implied contract theory may provide a basis for the action. In my opinion, filing for the labor certification and not conveying the approval to the employee when his layoff is pre-determined may be bad faith at least in relation to foreign nationals whose presence in the country is determined by their employment. By filing the labor certification or PERM the employer creates an expectation in the worker that he would be hired if the government approved. If at a later date employer decides not to hire the worker for such a position it can’t file a false employment application with the government but it certainly falls short on the foreign national’s expectation. Atleast, let the worker know that an approval of the labor certificate is granted so that if allowed by law the worker could port to another employer. Withholding such information appears spiteful.

Employer’s duties to the two parties under a badfaith contract would be conflicting and so he must pay for choosing to wrong one of the two and here it is the EX Employee. Perhaps one could also argue that the employer took away employee’s opportunity to reduce his losses in lost ability to look up for alternative H1-B employment may be a 7th yr. extension and/or a new sponsor for his new I-140, Employment Based Permanent Residence Petition.