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.
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.
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.
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.
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.
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.
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.