If I’m on a U.S. Visa, Can My Boss Terminate Me Without Cause?

Visas allow thousands of foreign individuals in a variety of fields to work and live in the United States every year. Since remaining in the country is contingent on being employed, employees should be well versed on the basics of work visas and what should be done in a termination situation.

What types of work visas are there?

Work visas vary based on the type of job and length of stay. It is important that you have the appropriate visa for the job you hold. Some of the most common types are:

• H1-B visas are temporary visas for skilled, educated individuals employed in specialized occupations. They allow foreign workers to temporarily work for a specific employer. The H-1B visa is initially granted for up to three years, but may then be extended to a maximum of six years.

• H-2B visas are temporary non-agricultural work visas that are available if there is an insufficient number of domestic laborers to fill the positions. (Examples include jobs at ski mountains, beach resorts, or amusement parks.) The maximum authorized period is one year, but an employer may extend the period of the visa up to three years with heavy scrutiny from immigration authorities.

• H2-A visas are for seasonal agricultural workers given there is a shortage of domestic workers.

Can I be terminated without cause if I’m on a U.S. visa?

If your job is in Florida, then the answer is “yes”. Florida is governed by the common law doctrine of employment at will. Unless you have a contract that specifies a definite term of employment or limits reasons for your termination, you can be terminated at will.

Congress has adopted some laws to limit an employer’s ability to terminate. Employees cannot be terminated:

• Based on race, color, religion, sex, national origin, age, handicap or mental status.

• For filing a worker’s compensation claim.

• For being a “whistle blower”

• For filing a claim for failure to pay wages or overtime.

• For exercising any federally protected rights such as unionization, family or medical leave, or filing a sexual harassment complaint.

What should I do if I am on a work visa and get fired?

If you are given advance notice of a termination, you should immediately begin making arrangement for a new job or research other types of visas that will allow you to remain in the country. It is important to note that once a termination of employment occurs, a H-1B worker is immediately out of status.

If you do not get any advance warning, there is still a chance to remain in the country. If you are able to find a job quickly enough, you may still be able to obtain a H-1B transfer by filing an H-1B Nunc Pro Tunc petition.

To satisfy the requirements of this type of petition, you must meet the following criteria:

• The reason for the delay in filing the visa petition must have been due to extraordinary circumstances beyond the control of the employer or employee;

• The employee must not have any other visa status violations;

• The employee must be a bona fide nonimmigrant;

• The employee must not be in removal proceedings.

Situations where your U.S. work visa status is threatened require timely and knowledgeable action. It is advisable that, if you find yourself in this position, you consult with an experienced labor lawyer to help ensure your continued stay in the United States.

Should you have any questions related U.S. work visas, please contact us online or call our offices at (561) 653-0008. At Scott Law Team., our approachable and knowledgeable lawyers are dedicated to providing skilled legal representation for your unique situation.

Sources:

• About.com
• Journal Media
• U.S. Department of State