Chapter 19 The Impact of Employment Termination on a Physician’s Immigration Status

• Jurisdiction: United States

When a foreign physician decides to terminate his or her employment or an employer decides to terminate a foreign physician, a host of legal and business issues erupt that cannot be considered lightly. No one should be surprised that mismanaging the immigration issues associated with a physician’s termination can lead to serious consequences, like the physician falling out of status and the employer being subject to fines, penalties, and lawsuits.

Generally, employers are well aware of their obligations under the labor and employment laws applicable to termination situations. In layoffs, most employers understand the need to provide employees with information on the layoff process, including benefits continuation, applying for unemployment compensation, and, in some cases, even providing career transition counseling and job search services for their employees.

Sudden terminations sometimes are made without the same level of preparation. In either case, the individuals responsible for managing the termination process often overlook the significant immigration-related consequences impacting both the employer and the physician.

This chapter is intended to provide guidance to employers and physicians in dealing with layoff situations, as well as advising physicians on risks to be aware of when deciding to leave an employer. While there is no way to make situations leading to layoffs or terminations easier, properly attending to immigration matters during the termination process can at least prevent making a bad situation even worse.

At the outset, it is important to stress that when an employer decides that a physician is to be terminated or a physician decides he or she would like to leave, an immigration attorney should be contacted immediately to discuss the necessary steps needed to ensure the worker maintains his or her status and that decisions are not being made that might cause unnecessary harm to either party.

The immigration attorney who handled the original immigration work faces a conflict of interest in termination situations; depending on state ethics rules, this may be waived. In such cases, the attorney who handled the initial immigration matters may provide information about what the law requires but may not be able to implement those requirements and may have an obligation to tell the other party what is happening. In such cases, it is a good idea to either talk to a different immigration attorney entirely or tell immigration counsel to provide the name of another firm that can assist because of a potential conflict-of-interest situation.

Many attorneys, including the authors, have others to whom they regularly refer conflict matters. Employers terminating a physician also might consider offering to pay counsel fees for the physician’s own immigration attorney to ensure that the physician is being properly advised and the termination goes more smoothly.

What are the immigration-related consequences of
terminations on employees in nonimmigrant status?

Physicians in graduate medical training on a J-1 visa should be very cautious when leaving their program at a teaching hospital. The Educational Commission on Foreign Medical Graduates (ECFMG) has strict rules regarding continuing to sponsor a physician that has deviated from his or her expected training plan. ECFMG would need to issue a new Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, for the new program.

Physicians training on an H-1B may have more flexibility if they find a new position. In this instance, it is important to make sure a new H-1B petition is filed before, or within 60 days after, the physician quits the initial position. Under H-1B portability rules (explained in Chapter 10), the physician could begin employment with the second employer as soon as the change-of-status petition is filed.

For physicians in a post-training J-1 waiver job, immigration law strongly discourages attempts to change employers. The physician must find a new employer to file a new H-1B application, demonstrate that the position is in a shortage area, show that he or she is being offered a contract to serve out at least the balance of the three-year work obligation, and show the existence of extenuating circumstances justifying the change.

The extenuating circumstances requirement is subjective, so convincing a U.S. Citizenship and Immigration Services (USCIS) examiner that there is a good reason for an employment change is not a certainty. Being laid off, terminated without cause or due to closure of a facility or program all could form the basis of a successful petition. If a physician already has completed the three-year service requirement, moving employers is much easier. The doctor would need an H-1B transfer to be filed by the new employer, but would not be limited by location, extenuating circumstances or the H-1B cap.

The 60-day grace period allows E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN visa holders to re-quest a one-time grace period of up to 60 days when em-ploy-ment ends prema-turely, such as if a doc-tor is laid off or vol-untarily leaves em-ploy-ment. Doctors in the 60-day grace period are con-sidered to be main-taining status for pur-poses of filing a change of status.

Im-portantly, J-1 physi-cians are not cov-ered by the grace period and should seek counsel immedi-ately if dismissed from their program or if they need to terminate their par-ticipation.

USCIS con-firmed that H-1B port-ability applies to peti-tions filed during the grace period but those in other nonim-migrant statuses do not benefit from portabil-ity.

Note that the grace period benefit is discre-tionary. The au-thors’ experi-ence is that USCIS has been applying the grace period when asked, but be-cause it is not guaran-teed, caution is ad-vised.

Doctors also need to be sure that they properly maintain their nonimmigrant status even if a change of employers is possible. Employers can help by looking at the particular status of any physician being terminated to determine the immigration impact of the termination. Physicians are affected differently depending on the type of visa they possess and whether they have any applications pending.

In most nonimmigrant categories, including H-1B and O-1, an employee may remain in the United States only as long as he or she is employed with the...