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The H-1B Termination “Stinger” in the Era of COVID-19: What Employers Need to Know

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The ongoing COVID-19 pandemic and its global economic repercussions have forced many employers to make difficult choices regarding their workforces.  Businesses that employ workers who are not U.S. citizens must reckon with additional complications, as their decisions will affect both the employees’ livelihoods and their ability to remain in the United States.

Given these challenges, it is essential that companies consult an immigration attorney if they are considering personnel actions that would affect their foreign national employees, including layoffs, furloughs, and other terminations. (For more general information on the immigration consequences of workforce reductions, please see our prior H-1B Stinger article about this topic.)

Managing H-1B visas in these situations can be particularly complex, given the expansive network of underlying and inflexible terms and conditions. Employers that sponsor foreign nationals for U.S. employment through the H-1B visa program take on numerous exacting – and all too often unforgiving – obligations.  And on the employee’s side of the relationship, those who are laid off, furloughed, or fired will need to find new employment as soon as possible or else leave the U.S. indefinitely per the equally exacting obligations that the program imposes upon them.

Chin & Curtis previously published a post (linked above) that examines an employer’s obligations following the termination of an H-1B employee, and the substance of this piece still stands. As we noted, the 2006 case of Amtel Group of Florida, Inc. v. Yongmahapakorn essentially confirmed that the employer’s obligations under the H-1B and the LCA do not cease until the employer completes the following steps:

  • Notifying the Department of Homeland Security (DHS) that the employment relationship has been terminated; and
  • Offering payment to the H-1B employee for return transportation to their home country.

The termination of an H-1B employee that occurs prior to the expiration of the employee’s valid H-1B status can only be “bona fide” if the employer completes both of these two steps.

While the obligations outlined in our prior article still hold, there are two relevant updates that employers should be aware of in light of the current situation.

First, a new DHS regulation from 2017 institutionalized a “grace period” of up to 60 days, during which a terminated H-1B employee may remain in the United States to find new employment, secure a new immigration status, and/or wrap up their affairs and depart the US.  This change, while obviously beneficial for employees, is also welcome on the employer’s side, as it allows employers to execute terminations without putting their former H-1B employees in immediate legal peril.

Second, employers should consider the impact of the current climate on their protocols for offering payment for return transportation. For instance, how will travel restrictions, if any, affect the availability of return flights and how will airline service reductions impact the cost of the tickets? The applicable regulations leave a good deal of ambiguity around these and other questions concerning the offer of payment for return transportation costs, including whether an offer is sufficient as opposed to actual payment; whether the employer can set a limit to the cost amount; or whether setting a time limit for accepting the offer is appropriate. Absent any specific, regulatory guidance on these matters, employers are generally advised to use “reasonableness” as their guiding principle (though, of course, what is “reasonable” will depend on the situation).

Employers should therefore be mindful of the circumstances surrounding a COVID-19-related termination, including issues arising out of international travel restrictions– and should adjust their policies accordingly. 

About the Author: Phil Curtis has practiced immigration law for more than 30 years and is a founder of Chin & Curtis, LLP.  He has guided Chin & Curtis for the last seven years and now serves as Co- Managing Partner.  With more than 40 professionals dedicated to serving the immigration needs of the business community, Chin & Curtis is New England’s largest independent immigration law firm.


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Arizona Legislature Votes to Legalize Discrimination. Urge Governor to Veto

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Image: Mike HallLast week in Arizona, the tea party-dominated legislature passed a bill that will allow businesses to slam their doors shut on anyone they say doing business with would violate their religious beliefs. While the bill was aimed primarily at the LGBTQ community, in effect, it could allow business owners to discriminate against anyone.

Gov. Jan Brewer (R) has until Friday to sign or veto the bill. Call 888-968-2464 and urge Brewer to veto the bill.

When the bill passed, Anna Tovar, the state Senate Democratic minority leader, said:

With the express consent of Republicans in this Legislature, many Arizonans will find themselves members of a separate and unequal class under this law because of their sexual orientation. This bill may also open the door to discriminate based on race, familial status, religion, sex, national origin, age or disability.

Sate Rep. Chad Campbell (D) told CNN Friday:

Let there be no doubt about what this bill does. It’s going to allow people to discriminate against the gay community in Arizona. It goes after unprotected classes of people and we all know that the biggest unprotected class of people in the state is the LBGT community. If we were having this conversation in regard to African Americans or women, there would be outrage across the country right now.

Aside from the outrageousness of virtually legalizing discrimination, if signed into law, the bill is likely to have a serious negative economic impact on the state. Arizona AFL-CIO Secretary-Treasurer Rebekah Friend says it “could prompt an economic backlash against the state, similar to what occurred when the state passed the controversial immigration law, Senate Bill 1070, in 2010.”

It’s estimated those boycotts cost the state tens of millions of dollars in lost tax revenue and hundreds of millions in spending that would have gone to local businesses.

U.S. Sens. John McCain (R) and Jeff Flake (R) of Arizona have urged Brewer to veto the bill, and a large part of the business community has lined up against the bill. In a letter to Brewer urging her to veto the legislation, the Greater Phoenix Economic Council said:

The legislation will likely have profound, negative effects on our business community for years to come….The legislation places businesses currently in Arizona, as well as those looking to locate here, in potentially damaging risk of litigation, and costly, needless legal disputes.

It also warned Brewer that four unidentified companies have vowed to locate elsewhere if the legislation is signed.

Other businesses have spoken out against the measure. In Tucson, Anthony Rocco DiGrazia, owner ofRocco’s Little Chicago Pizzeria, posted a sign (see above) that reads, “We Reserve the Right to Refuse Service to Arizona Legislators.” He told The Huffington Post:

I just want to serve dinner and own and work in a place I’m proud of. Opening the door to government-sanctioned discrimination, regardless of why, is a huge step in the wrong direction.

Shannon Austin Zouzoulas, co-owner of a brewery and winery call Arizona Hops & Vines, called the bill “pro-hate” and posted the picture below of a rainbow liquid swirling in a wine glass on their Facebook pageFriday with the caption:

Arizona Hops and Vines Loves ALL our customers!

Apparently some other Arizona businesses hate certain types of their customers and will be able to discriminate against them if Brewer signs the bill into law.  Call 888-968-2464 and urge her to veto the bill.

This article was originally printed on AFL-CIO on February 24, 2014.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.


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