Foreign National Layoffs Trigger Requirements and Present Opportunities

It is no secret that certain sectors of U.S. employers have engaged in significant layoffs over the last six months. Meta—the parent company of Facebook, Instagram, and WhatsApp—laid off more than 11,000 employees in November alone. Meta and other tech companies regularly use the H-1B visa program to sponsor foreign national workers. In fact, Meta is listed as an H-1B dependent company, meaning at least 15% of its workforce is employed by virtue of nonimmigrant work visas. Many economic experts expect the layoff trend to continue in 2023, but demand for workers remains generally high. While foreign national layoffs can trigger regulatory requirements in some contexts, they also present unique opportunities for other employers to fill labor needs.

In the H-1B, H-1B1, and E-3 visa contexts, employers have a number of obligations when terminating a foreign national employee. For example, employers must provide written notice to the United States Citizenship and Immigration Services (USCIS) to withdraw the visa petition. Sponsors under these visa classifications are also expected to withdraw their labor condition application with the Department of Labor. In the event of a layoff, Employers are also required to offer to pay the cost of reasonable transportation to an H-1B and E-3 worker’s last country of residence. Importantly, the employer is not required to pay transportation costs for dependents of the H-1B or E-3 beneficiary and the travel reimbursement is not triggered when the foreign national finds new employment in the United States.

Given labor shortages being experienced across the U.S., some companies may be able to take advantage of layoffs by other companies to fill their needs. The immigration regulations provide up to a 60-day grace period after termination of employment for a foreign national in the following temporary statuses to find a new position in the U,S.: E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN. If a foreign national can find a new employer visa sponsor during the grace period, they can potentially avoid the need to exit the U.S. before starting work with the new employer.
The grace period is particularly helpful for foreign nationals in H-1B status. H-1B sponsorship generally requires selection in the H-1B lottery. However, when an employee has already been selected in the H-1B lottery and approved for H-1B status, he/she can change employers without needing to be reselected in the H-1B lottery. The change of employer flexibility also applies during the 60-day grace period. H-1B beneficiaries seeking to change employers can also begin work immediately upon filing the H-1B change of employer petition, without needing to wait for official approval.

In some circumstances, a U.S. employer may also be able to serve as a substitute employment-based Green Card sponsor with very little cost. Where a foreign national has an approved employment-based Immigrant Visa Petition and an Adjustment of Status Application pending with USCIS for more than 180 days, the foreign national can utilize a job offer with a different employer similar to the job offer in the underlying initial application to obtain their Green Card. In the layoff context, a new employer can therefore potentially fill a need for a skilled worker while also saving the foreign national’s Green Card application from failure at the final step.

Burr & Forman’s immigration team works with clients to utilize a variety of strategies to fill staffing needs. If your business has questions regarding business immigration strategies, contact Jonathan C. Eggert (JEggert@burr.com), Melissa Azallion Kenny (MAkenny@burr.com), or Anna L. Scully (Ascully@burr.com) on the Burr & Forman LLP immigration team.

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