ALTERNATIVE TO H-1B EMPLOYEE LAYOFFS

December 29, 2008 by Bradley Maged.

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.

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