Managing Workforce Contraction During An Energy Slump: Special Considerations for Nonimmigrant Workers Affected By a RIF

Continuing our weekly “Falling Oil Prices and RIFs” series, this week’s topic focuses upon immigration law issues that typically arise during workforce reductions.For companies that employ foreign nationals, a RIF will raise a host of immigration issues for both the employer and the worker. H-1B petitioning employers must (i) notify the U.S. Citizenship and Immigration Services (“USCIS”) that the employment relationship has ended; and (ii) withdraw the certified labor condition application with the U.S. Department of Labor (“DOL”). These steps are important, as failure to maintain clear evidence of bona fide termination could subject an employer to back pay liability through the H-1B validity period. For example, the DOL’s Administration Review Board recently required a Texas company to pay an H-1B worker more than a year of back wages when it failed to notify the USCIS about the employment termination. Although applicable regulations also require an H-1B petitioning employer to pay for the return transportation abroad for the discharged worker, the USCIS considers it a contractual matter. In any event, most foreign national workers do not wish to repartiate.Besides being out of a job, a RIF also has a significant impact on nonimmigrant workers because they technically become out of status upon the termination of employment. Unfortunately, immigration laws do not provide a “grace period” for recently unemployed workers. Instead, they are expected to immediately depart the country unless they are able to apply to change to a new status or “port” to a new employer if holding H-1B status. For this reason, some employers offer workers “garden leave” (i.e., allow the foreign worker to remain on the payroll for a set period instead of offering a lump-sum severance payment) to facilitate a better opportunity to obtain new employment or change to a different nonimmigrant classification. Finally, a RIF potentially impacts retained nonimmigrant workers, even if it is U.S. employees who lose their job. During the employment-based green-card process, an employer must state whether it conducted a layoff affecting the underlying occupation within the past six months. If it has, the DOL will audit the application and require the employer to demonstrate that the laid-off U.S. worker was not qualified or not interested in the position.Because no two cases are alike, it is important for employers to individually evaluate each nonimmigrant worker’s case and determine pragmatic and creative solutions to immigration issues that arise out of RIFs.- Marc Klein, Thompson & Knight, LLP