Termination of a foreign employee

Employing foreign workers comes with complications such as sponsorship of legal status to work and live in the United States. When employment is terminated by either the employer or employee there are steps that need to be taken by the employer. The process varies depending on the visa status the foreign employee holds. We discuss the termination of certain foreign employees and what you should consider.

We have terminated our foreign employee, what now?

The steps you take when terminating a foreign employee depend on their visa status. We cover what steps need to be taken below:

  • Terminating an H1B Visa, H1B1 visa, or E3 Visa Worker – If you are terminating a foreign employee in either H1B, H1B1, or E3 visas status, you must do the following:
    • Provide written notice of termination to the foreign employee.
    • Provide written notice of termination of the foreign employee to USCIS (US Citizenship and Immigration Services), and withdraw the LCA (Labor Condition Application) with the US Department of Labor.
    • Cover the cost of reasonable transportation for the foreign employee to return to their country of last residence. Cost of transportation is NOT required if the employee terminates the employment or chooses to remain inside the United States. This is often the case when the employee quits joining a new employer or changes to another status to remain inside the United States post-employment.
  • Terminating an O-1 Visa Worker – If you are terminating a foreign employee in O-1 visas status, you must do the following:
    • Provide written notice of termination to the foreign employee.
    • Provide written notice of termination of the foreign employee to USCIS.
    • Cover the cost of reasonable transportation for the foreign employee to return to their country of last residence. Cost of transportation is NOT required if the employee terminates the employment or chooses to remain inside the United States. This is often the case when the employee quits joining a new employer or changes to another status to remain inside the United States post-employment.
  • Terminating a TN Visa or L-1 Visa Worker – If you are terminating a foreign employee in TN visa or L-1 visa status there is no reporting requirement to USCIS and no requirement to pay for the cost of return transportation. You should still provide written notice of termination to the foreign worker.
  • Terminating an E-1 Visa or E-2 Visa Worker – If you are terminating a foreign employee in E-1 visa status or E-2 visa status there is no reporting requirement. However, it is recommended to notify the U.S. Consulate or Embassy that issued the visa for the termination of the foreign worker. to USCIS and no requirement to pay for the cost of return transportation. You should still provide written notice of termination to the foreign worker.

Prior to terminating a foreign employee, make sure you understand and comply with all required regulations. You should maintain proof that you have complied with all regulations in the foreign employee’s personnel file in the event of an audit or claims or wrongful termination.

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