Corporate Downsizing, Layoffs and Immigration...

With our economy slowing, many companies may contemplate corporate downsizing that may include layoffs.  Employers must realize that these changes may have an unintended immigration consequences on some of its alien employees and even have an adverse effect on the employer itself.

If a company has employees on nonimmigrant worker’s visas, the worker will immediately lose their visa status. Thus, in order to stay legally in the US, the alien must quickly find an alternative visa status.  If an alien can’t find an alternative visa status, the alien is faced with the difficult decision of returning to their homeland or remaining in the US illegally.  If the immigrant is married, the immigration status their immediate family members derived from the alien’s status will also be in jeopardy. Therefore, employers must realize the problems that sudden layoffs may cause their nonimmigrant workers and provide ample notice to them before such downsizing.

For immigrant employees, company downsizing may jeopardize their lawful permanent residency status that the employer commenced on behalf of the employee. If the employee’s adjustment of status application has not been pending for over six months, the alien can not switch employers without jeopardizing their immigration petition. If the application has been pending for over six months, the alien is allowed to switch employers if they will be working in a position similar to the position noted in the labor certification and immigration petition.

For those employees that have already obtained lawful permanent resident status, sudden changes in employment will not jeopardize their status.

The employer must also realize the responsibilities it has when company layoffs affect H-1B alien workers. The employer has a duty to notify the INS when an alien’s employment has been terminated. This allows the INS to revoke the individual’s immigration status. If an employer neglects this responsibility, the employer may be subject to continuing wage obligations to H-1B employees.

Thus, when downsizing a company, those responsible must realize these and other often overlooked immigration issues to avoid displaced workers’ unnecessary hardship and to avoid unnecessary cost to the company.

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