Severance Agreements For H-1B Visa Holders, Green Card Applicants (I-140/I-485) And Other Alien Work

Alien Worker Severance Agreements - In General
Alien workers and their employers who negotiate severance agreements have several issues to consider in addition to those that apply in normal circumstances. In many instances, an alien’s ability to remain in the United States or change employers (Port) under AC21 is dependent on the alien’s ability to maintain his visa status by remaining employed by the sponsoring employer. Upon losing the sponsoring employment, an alien may go out of status or have a break in his visa status.

Alien Worker Severance Agreements - Loss of Visa Status And Portability
An abrupt termination of the employment relationship will likely result in a loss of immigration status for visas that are linked to specific employment status such as the H-1B, L-1, J-1 and E-3 visa. For H-1B visa holders and I-140/I-485 applicants, a disruption of employment may cause the alien not to be able to port either the I-140/I-485 petition or H-1B visa. With the loss of non-immigrant visa status, an alien may be placed in deportation or removal proceedings, terminating their ability to remain in the United Stated.

Alien Worker Severance Agreements - Employer Payment of Deportation Costs
Where an employer’s termination of an H-1B visa holder results in the deportation of the alien at the government’s expense, such an employer may be responsible for all of the deportation costs resulting from the termination of the alien’s employment.

Special Considerations In Negotiating Alien Worker Severance Agreements
In negotiating a severance agreement where the employee-alien is on an H-1B visa or has a green card petition (I-140/I-485) pending, the employer and alien employee should consider the following:

  •  Whether the alien’s visa status will end as a result of the termination and whether the employee can remain in valid immigration status long enough to secure other employer to which his/her visas can port.
  • In I-140/I-485 portability cases, a determination should be made whether the I-140 is approved and whether the I-485 has been pending for 180 days to facilitate AC21 portability of the green card petition.
  • Whether a mutual accommodation can be reached by the employer and employee to avoid possible loss of visa status by the employee and eliminate the likelihood of the employer’s liability for deportation/removal costs in the event that the alien is removed.

Severance Agreements - Protecting The Alien Worker And His Employer
Where possible, the employer and employee can negotiate an agreement that benefits both parties. The employer may obtain a severance agreement wherein the employee agrees to give up any rights to sue the employer in connection with his/her employment and termination. In return, the employer may agree to an additional period of employment of the alien to permit the alien time to obtain a new job and transfer his/her visas to the new employer and retain his visa status.

Drafted carefully and cooperatively, such a severance agreement may provide adequate protection to the employer as well as the employee whose stay in the United States does not terminate as a result to the termination of his/her employment.

In addition to these considerations, please review a discussion of [Severance Agreements] in general terms for an overview of the entire process.