Considerations when Terminating a Foreign Worker


Terminating an employee is always a difficult decision. Terminating a foreign worker comes with additional challenges that must be considered. Employers must ensure they comply with all state and federal laws. Consult with both your immigration lawyer and employment lawyer before taking action.


Termination of H-1B, H-1B1, and E-3 employees requires:

  • Written notice to the employee;
  • Written notice to USCIS; and
  • Payment of the cost of reasonable return transportation to the employee’s country of last residence.

The employer is not required to pay transportation for dependents. This offer is not required if the employee resigns or chooses not to leave the United States. Withdrawal of the labor condition application is also recommended as a best practice. The employer continues to be liable for back wages until there is a bona fide termination.

Termination of O-1 employees requires:

  • Written notice to USCIS; and
  • Offer to pay the cost of reasonable transportation to the country of last residence.

Termination of TN and L-1 employees:

  • There is no specific immigration notification requirement or return transportation requirement.

Termination of E-1/E-2 employee:

  • It is recommended that the U.S. consulate that issued the E visa be notified that employment was terminated. This, however, is not mandatory.



Regulations give workers in the above statuses a grace period of up to 60 days after employment is terminated or until the end of the currently authorized stay – whichever is shorter. For example, if the foreign worker is terminated on 1/1/22 and their I-94 expires on 1/15/22, their grace period expires on 1/15/22. This would be the end of their authorized stay. However, if the foreign worker’s I-94 expires on 12/15/22, their grace period expires 60 days from the termination of employment (3/2/22).

During this grace period, the worker may remain in the United State without working and will not be considered out of status. The worker can use this time to:

  • Prepare to depart;
  • Find another employer that will file a petition within the grace period; or
  • Change to another status



Withdrawing an approved I-140 after termination may have negative effects on the foreign worker. There is no requirement stating that an employer must withdraw an approved I-140 petition, but if a withdrawal is desired, you should consider the timing.

Withdrawal requests made before 180 days have passed from approval will automatically revoke the petition. This means the worker will keep the same priority day for future I-140 petitions but will be unable to rely on the I-140 approval to qualify for H-1B extensions beyond the standard 6-year limit.

Withdrawal requests made after 180 days have passed from approval will allow the terminated employee to receive I-140 approval benefits, including continued eligibility for H-1B extensions beyond the 6-year limit.


For more information on terminating an employee, contact us for a consultation. Click here for options for nonimmigrant workers following termination.

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