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When is someone 'terminated' in the eyes of USCIS?

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  • When is someone 'terminated' in the eyes of USCIS?

    Hi folks,

    this site below says: "The Department of Labor regulations prohibit an employer from putting an H-1B holder on bench status. If an employer places an H-1B in bench equivalent status, the employee must nevertheless be paid a full wage. You are still in H-1B status even if you are put on bench, unless the employer clearly terminates the employment relationship."

    http://www.askwang.com/H-1B/H1B_layoff.php

    Could someone specify what "clearly terminates the employment relationship" would be?

    Stops paying wages?
    Tells me I'm laid off?
    Lays me off in writing?
    Laid-off date is last date mentioned on latest pay stub?
    Files a revoke of my petition I-129? (Also pays or offers to pay a return ticket)
    Receives confirmation from USCIS, revoking the I-129 petition? (In this case, is the laying off active from the receipt of the approval or at the earlist from the day the employer filed?)

  • #2
    When the employer sends a revocation letter to USCIS mentioning a date of termination. That date is considered as date of termination.

    The employer must pay full LCA/prevailing wage until that date (and in regular intervals) and if the employee is terminated before petition expiry date, they must pay for return ticket.
    This is my opinion and not legal advice.

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    • #3
      What happens with status?

      Originally posted by kabkaba View Post
      When the employer sends a revocation letter to USCIS mentioning a date of termination. That date is considered as date of termination.

      The employer must pay full LCA/prevailing wage until that date (and in regular intervals) and if the employee is terminated before petition expiry date, they must pay for return ticket.
      Thanks. Two small follow-ups if you would:

      A) Can the revocation letter mention a termination date that is before the filing/sending of the revocation? (E.g. if they send it/file it on October 10th, can they say I was laid off Oct 2nd?)

      B) And what about "Status", when am I "in status" and "out of status" in the case of a termination? Note that I am distinguishing between 1) the date the employer might verbally or in writing tell me I'm laid off and stop paying wages and 2) the date I would be "bona fidedly (Is that a word?) terminated.

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      • #4
        Originally posted by swiss View Post
        Thanks. Two small follow-ups if you would:

        A) Can the revocation letter mention a termination date that is before the filing/sending of the revocation? (E.g. if they send it/file it on October 10th, can they say I was laid off Oct 2nd?)

        B) And what about "Status", when am I "in status" and "out of status" in the case of a termination? Note that I am distinguishing between 1) the date the employer might verbally or in writing tell me I'm laid off and stop paying wages and 2) the date I would be "bona fidedly (Is that a word?) terminated.
        Yes, they can send the letter after actual termination occurs.

        You will be out of status once they stop paying for the sake of changing or extending status. However, if you complain to the DOL for not getting paid until date of termination, then USCIS can ignore the out of status period until date of termination and grant change/extension of status.

        If you provide more information on why you are asking this, maybe I can answer better.
        This is my opinion and not legal advice.

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        • #5
          It's complicated :S

          Originally posted by kabkaba View Post
          You will be out of status once they stop paying for the sake of changing or extending status. However, if you complain to the DOL for not getting paid until date of termination, then USCIS can ignore the out of status period until date of termination and grant change/extension of status.

          If you provide more information on why you are asking this, maybe I can answer better.
          My visa was recently approved, I have yet to go to the US. Due to recent events, I suspect that they will not let me begin my work when I get there Oct 1st. I don't believe they have filed to revoke my I-129. I am worried that they will tell me there on the spot, that the deal is off, and that I will have no time to find a few job without being out of status or having to leave the country. I'd like to avoid having to file for change of status (Time and money). I am also worried that if I don't work for at least one day, 1) I will be out of status immediately (So will never have been in-status), and 2) will not be exempt from the cap if I chose to re-apply for a H-1B with a different company (Not sure if either of those 1+2 are true(?)) .


          Originally posted by kabkaba View Post
          Yes, they can send the letter after actual termination occurs.
          I actually meant, can the date they tell USCIS as my termination be a date that is prior to the filing date?

          ...

          So a lot of pieces I'm trying to pull together. More help would be greatly appreciated.
          Last edited by swiss; 08-12-2015, 11:05 AM.

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