Employer Considerations When Laying Off An H-1B Visa Holder

H-1B visas are nonimmigrant visas that allow foreign workers in specialized occupations to reside and work in the United States for a limited time period. In the wake of recent technology industry layoff announcements, this begs the question of what happens to those employees, and what does a company have to do when laying off an H-1B visa holder? Amy Kobler, one of Plus's consulting experts, is here to share her insights:
 

"Amidst the current wave of tech layoffs, people are worried about more than just their job security. Many United States visas are reliant on a valid offer of employment, including the extremely common H-1B visa for foreign workers in the U.S.

When layoffs happen, visa sponsorships are nullified, resulting in the visa holders having to return to their home countries on short notice. Usually there is a 60-day period after layoffs in which visa holders are able to either secure another job or make arrangements to leave the country.

This makes an already stressful and upsetting process of losing a job even worse, as it is uprooting the employee and often their family too. The only solution to stay in the U.S. is to get another job offer with an employer willing to sponsor their visa. In normal circumstances this wouldn’t be as difficult, but many companies, especially in the tech industry, are on a hiring pause in anticipation of a recession.

According to Forbes, some tech companies have 4-5% of their work force on H-1B visas and are laying off upwards of 14% of their staff. When these major layoffs happen, usually resources are made available to visa holders to provide them with aid in the next steps managing their visas.

When sponsoring foreign employees, it is crucial for employers to provide levels of support through all stages of the visa process. In fact, Forbes states that there are legal obligations for employers to follow when laying off H-1B visa holders. Employers must notify the United States Citizenship and Immigration Services (USCIS) office of any change in the terms or conditions of the H-1B’s employment. Additionally, the employer is also required to pay the reasonable cost of transportation for the H-1B visa holder to return to their home country before their visa expires. The employer is required to pay the H-1B visa holder’s salary until they comply with the first two requirements. Additionally, the employer should document all steps it has taken to comply with immigration law. 

Bringing foreign talent to the workplace is a great way to bring in new ideas, and build bridges between international divisions within companies, but there are that must be accounted for. Being prepared for worst case scenario situations can help protect not only the company and their mobility program, but also the employees, so everyone has a more structured form of support if layoffs occur."

Thanks Amy!

For the employee that has been laid-off, this other Forbes article would be a worthy read on how they might be able to remedy their situation. There are other visa options that may be available for their situation (B-1/B-2 change of status, H1-B1, L-1 intercorporate transfer visas, O-1 extraordinary worker visas, E-2 or E-3, or TN USMCA professional visas as examples). There may even be some options for relocating from the U.S. to Canada. 

One more resource, listen to this The Hustle podcast that dives in deep on how the tech layoffs are impacting H-1B workers. The get into some of the issues related to green cards, like the current huge backlog, and provide interesting facts like that 74% of H-1B beneficiaries are from India, which has created a ~90-year wait.