Immigration Strategies for Employers During Layoffs

Layoffs can be a challenging time for any employer, large or small. To ensure that a reduction in force for an employer that has a foreign-national population goes smoothly, it is critical to understand the immigration obligations necessary to satisfy federal regulatory requirements.

A foreign-national workforce will consist of two separate groups of employees: nonimmigrant workers, and immigrant workers in the permanent residence process. Nonimmigrant workers can further be divided into two groups: those sponsored by the company (including the H-1B, L-1, E-1, O-1 or TN temporary visa categories), or those that have employment authorization incident to status (F-1 students, J-1 trainees or individuals with EAD work authorization). Nonimmigrant workers in visa status based on sponsorship with the employer are generally authorized to work and live in the U.S. only as long as they continue to be employed by the sponsor. When employees in this type of visa status are laid off, they immediately lose their status; and if they are unable to secure alternative employment and/or visa status, they must depart the U.S. along with their dependent family members.

During layoffs, it is critical for employers to develop a strategy for communication regarding the lay-off to their employees. Employers should develop individualized strategies based on the employees' particular visa status. This is important as employers' obligations under Department of Labor (DOL) regulations may differ, depending on the visa status of the population subject to layoffs. Specifically, employers must work with immigration counsel to address the following questions prior to notifying employees of the layoffs:

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