So, you have an employee who is working in the U.S. on an H-1B or other work visa. A lot of employers wonder what to do when the employee’s visa expires. Do they need to terminate the employee?
The answer depends on the type of visa, but it doesn’t necessarily mean that you have to let them go.
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Review Employee Visa Documentation
When your employee’s work visa is about to expire, you will need to review their documentation, a process called reverification. For this, they will need to present their new work permit and required supporting documents. Make sure they know that they can’t use expired documents when applying for a work permit. The reverification information is recorded in section 3 of the employee’s original I-9 form. In a few cases, you may need to create a new I-9 form; if you do, make sure to retain the old one.
The documentation, as with the original I-9, should be reviewed in person with the employee. Due to COVID-19, remote inspection is currently allowed, but the documents will still need to be reviewed again in person once normal operations resume.
When Must Work Permit Renewal Occur?
Reverification must occur before the old work permit expires and as soon as the employee receives the new one. As it can take 90 days to process a new work visa, employees must apply 90 days before their permit expires, but no more than four months. Help your employees out by deploying a calendar reminder system that notifies them when they should reapply and ensures that HR keeps track.
For example, if you have an employee who is on an F-1 student visa but has a work permit due to economic hardship, remind them to apply for renewal four months before their visa expires at the end of August. You should then remind them again a couple of weeks before the renewal is due and schedule a meeting to reverify their documents. You need to be proactive about this. If it’s their first time renewing a work permit, it’s a good idea to have HR go over the process with them and make sure that their supporting documents haven’t expired.
Be aware that some people might change status when (or before) their work permit is renewed. For example, if an employee gets a green card, you will need to reverify them to update their status. Make sure employees know this so that they can be proactive and get their status updated properly. The most important thing is to make sure you don’t wait until the last minute, at which point it can be too late to get the permit renewed on time.
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Know When to Terminate a Foreign Worker
It is unlawful to allow somebody with an expired work permit to work, even if it’s only a matter of a few days. Thus, if somebody cannot present their new work permit before the old one expires, they must be terminated or suspended. If you suspend an employee, you can reinstate them as soon as they file the appropriate paperwork. You cannot take any adverse employment action until the visa expires. This means that you can’t use adverse action such as formal warnings to encourage somebody to renew, nor can you fire somebody for failing to apply for renewal, as this is considered discrimination.
H-1 visas can only be renewed once, so if you have an employee approaching the end of the second three-year period, you will either need to plan to terminate them or try to find another visa they can use instead.
One complicated area is if an employee gets an employment authorization extension receipt. Can they still work? This system is intended to protect people who filed on time but have not received a reply. It primarily refers to refugees, asylum seekers, and people applying for green cards. If your employee shows you an EAD receipt with an automatic extension, you may, and in fact must, keep them employed. The extension lasts for 180 days unless the renewal is denied. If any renewal is denied, you must terminate the employee.
If you have employees who are on any kind of temporary work visa or permit, it’s your responsibility to ensure that you don’t continue to employ them after their permit expires. However, you also need to make sure that you don’t take illegal adverse action or discriminate against them. Because of this, it’s best to have HR keep a calendar that tracks everyone’s immigration status and sends out reminders to appropriate people, including the employee concerned.
This is one area where a lot of expertise is needed and companies should take necessary precautions. Most employers will discuss options with an immigration attorney prior to making any big move on an employee – especially when it comes to measures like termination or suspension.
Working with a professional employer organization (PEO) can help you keep track of immigration status, understand the nuances around visa and permit expiration, and ensure that everyone is up to date. To find out more about what a PEO can do for you, check out our blog.
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