Does the US Policy of “At Will” Employment Apply to H1B Visa Workers?

One of the distinct differences between the US and most other developed economies is the pervasive pro-business policy toward employment relationships.  This often comes as a surprise to foreign workers who come from countries where labor and employment laws often favor employee rights over the employer’s interests.

In the US, most employment is ‘at will’ meaning that both the employer and employee can end the relationship at any time and for any reason without repercussions.  What this means is that in most cases the employer does not have to give a reason for dismissal, no notice is required, and no severance pay owed.

The only way this can vary is if there is an employment contract that specifies a termination notice period or severance amount.  There are no automatic statutory protections in these areas in the United States.

Are H1B Workers “At Will” Employees?

Naturally, an H1B worker would want to know if this same policy applies to foreign workers as well.  At first glance, you might think that the fact an H1B visa worker has moved to the US away from their home country and family, would make some difference in how termination might be handled.  

The truth is that H1B sponsors are probably more careful in terminating a foreign worker, given the circumstances, but they have no legal restriction to do so.  There are no special rules that apply to foreign workers of any type.

There are several motivations however for employers to keep H1B workers on if possible, including:

  • If the sponsor fires you, they have to pay your expenses to return home
  • The sponsor will lose the entire investment of H1B visa and lawyer’s fees to file the petition and hire the worker
  • They will also lose a highly skilled employee, for a position which they could not fill with a US citizen in the first place
  • Finally, they will have to start the H1B process all over again, waiting for the annual lottery and taking a chance on being selected

So, although these are not exactly legal boundaries, they do present good reasons to make every effort to keep the worker on for the duration of their H1B visa.

Doesn’t a Sponsor Need a Reason to Terminate an H1B Visa Worker?

The short is answer is no, you can be fired without cause or justification.  To be fair, most employers/sponsors who have made the investment wont fire an H1B worker for random or superficial causes.  In most cases, it would probably be due to performance or attitude issues that can’t be corrected.

However, if for any reason the termination is based on discrimination (race, religion, gender) then you do have protection and remedies under US labor law.  Given the fact that all H1B workers are foreigners with a wide range of race and religion, it could be fairly easy for a terminated worker to file a discrimination claim.  The laws of the US control every aspect of your employment, and you receive the same statutory protections as US citizens.

The problem is that if you are terminated, you only have a 60 day grace period to stay in the US, and that may not be enough time to bring a claim.  Truthfully, you would be better off using the time to look for a new position.

It is good to be aware of the US employment policies which may be quite different from your home country, so that you can know what rights you or don’t have in the event of an unexpected termination while working under an H1B visa.

  • November 28th, 2018
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