The following is not legal advice and is for general informational purposes only. Please consult with a qualified immigration lawyer to discuss your unique situation.
I received my monthly edition of GQ and although I was surprised by the almost naked picture of a thin Jennifer Aniston on the cover, what was even more amazing was how thin the magazine itself was. I have not had time to go through the magazine, but my guess is that there are currently far fewer advertisers than there have been in the past. My point? Everywhere we turn, the fact that the economy has hit a rough patch is evident.
As employers around the country seek to cut costs, at least temporarily, some are looking to decrease wage obligations. If your organization employs H-1B workers and needs to either eliminate the position(s) or minimize the requisite payments there are a couple of options, both of which require submitting information to the Department of Labor and the US Citizenship and Immigration Service.
Terminating an H-1B Employee
The more drastic of the two measures referenced above is to terminate the H-1B employee. From strictly an immigration point of view, this requires withdrawing the Labor Condition Application, advising the USCIS of the withdrawal, and paying the beneficiary’s return transportation. It is a good idea to seek the advice of immigration counsel when terminating a non-immigrant to ensure that the petitioning organization does not accrue liability to the employee or violate any applicable laws.
Switching the H-1B Employee to Part-Time Status
If your company employs an H-1B beneficiary and does not want to lose the worker, immigration laws permit the part-time H-1B status. This requires the filing of a new LCA and petition. Some employers and workers agree that this is a good measure when cost-cutting is necessary but both parties wish to continue the enployer/employee relationship. Again, the devil is in the detailsto execute this properly and the advice of immigration counsel is key.
In addition to the immigration consequences, there may be other issues that would affect whether or not to terminate or decrease the hours of a given employee which should also be examined.
In the current economic climate, many firms are laying off workers and some are unable or unwilling to pay wages owed to these employees. In the new year, I will be blogging on this issue and will explain the effects of layoffs of US workers and/or foreign-nationals on immigration benefits. This issue is complex and our firm has seen an increase in consultations from individuals who are interested in exploring their options as a result of actually being laid off or fearing an uncertain future with a particular employer.
Regarding unpaid wages or overtime, many individuals are unaware of or fear exercising their rights to obtain unpaid wages from their former employers. Employees are entitled to payments of all wages and in the case of foreign nationals, may be entitled to the reimbursement of certain additional expenses immediately upon or shortly after termination.
It is an unfortunate that the economic reality we face forces workers and their employers to examine immigration and wage issues in greater depth as we wait for the overall situation to improve. There are sometimes options available to workers who are terminated and I recommended that you invest in a consultation with a qualified lawyer to determine what these may be. Some options require thinking outside of the box and a consultation may be just what you need to evaluate your situation and determine what your next step will be as we all navigate these murky waters.
I wish you health, happiness and prosperity this Holiday Season!
According to a DHS Press Release: “The U.S. Department of Homeland Securitys (DHS) Citizenship and Immigration Services (CIS) Ombudsman Michael Dougherty today issued a study and recommendations on naturalization oath ceremonies.”
According to the Department of Homeland Security: “Beginning January 12, 2009, all nationals and citizens of Visa Waiver Program (VWP) countries will be required by law to obtain a travel authorization prior to initiating travel to the United States under the VWP. This authorization may be obtained online through the Electronic System for Travel Authorization (ESTA), a free Internet application administered by the Department of Homeland Security (DHS) through a U.S. government Web site.”
Access to Information on the ESTA program and the Online Application are now available.
According to a USCIS Update: “U.S. Citizenship and Immigration Services (USCIS) announced today that it is revising the Direct Mail Program for the Application for Naturalization (Form N-400).”
According to a USCIS Press Release: “Due to the Christmas holiday, and to an Executive Order excusing executive branch non-Postal Service employees from duty on Friday, December 26, 2008, all USCIS offices and Application Support Centers will be closed on Thursday, December 25 and Friday, December 26.”
According to an article on brownsvilleherald.com: “The number of mentally and developmentally disabled detainees in South Texas federal immigration detention centers has surged during the past year, according to area attorneys who call the trend ‘alarming.'”
According to an article in cnn.com: “A company accused of encouraging hundreds to illegally enter the United States and then hiring them using fake Social Security numbers has agreed to pay the largest settlement ever in a workplace immigration bust, the Department of Justice said Friday.”
Please visit our law firms new website www.immigrantconnect.com.
According to an article on latimes.com: “Immigrant advocates said Thursday that long-stalled efforts to legalize millions of illegal migrants, crack down on employers who hire them and win more family visas would be revived next year and could possibly succeed in early 2010 following sizable Democratic gains powered by record turnouts of Latino voters in the November election.”
If the issue is addressed, given the make up of Congress, Obama’s position on the matter and the large hispanic turnout in the 2008 election where anti-immigrant platform candidates lost big-time – it will likely pass.
An interesting point mentioned in the article is the focus that a CIR bill would have on punishing employers who underpay and otherwise abuse undocumented workers while offering the workers themselves a path to legalize their status. There are many cases where workers are underpaid, overworked and abused by unscrupulous employers yet are afraid to come forward to collect earned wages for fear of being detained or deported. This is unfortunate as it gives these employers a feeling of invincibility as they continue to violate wage and immigration laws thereby giving them an unfair competitive advantage.
Our immigration laws need to be updated to allow victims of serious workplace violations to come out of the shadows and assert their rights to stop the abuse that most everyone agrees must not continue.
Please visit our law firm’s new website www.immigrantconnect.com.
According to a USCIS Press Release: “After more than two years of collaboration and initiatives among 20 federal agencies and a variety of stakeholders, the Task Force on New Americans delivered a report today to President George W. Bush calling for the strengthening of immigrant integration efforts across the United States.”
Please visit our law firm’s new website www.immigrantconnect.com.