"Bona fide" termination of the H1-b
I hold a H1-b Visa (2 years with a first employer, transfered to a new employer 12 months ago).
My current employer told me 2 weeks ago that he has to "let me go" due to "lack of work". I have been given a 2 month notice with no severance package. I have no document yet saying that I will be laid off. My understanding is that: (please correct me if I am wrong) The Department Of Labor requirement states that an employee, who is temporarily non-productive due to the employer's request or lack of work, must continue to pay its H1B employee/s regular wages. The requirement ceases with a ‘bona fide’ termination. The preamble to the DOL regulations (but not the actual rule) also SUGGEST that a bona fide termination occurs only when the employer notifies the INS of the termination, the H-1B petition is cancelled, and the return air fare obligation is fulfilled. My questions are: 1- Can my employer meet the requirements of the "bona fide" termination before the official cancellation by the INS? In other words: Does my employer still have to pay me after I've received a letter that "officially" states that I got laid off? 2- How long does it take the INS to cancel a petition? 3- Is it in my interest to ask for this cancellation in order to get paid for this given period of time or could it impair/delay a possible future H1-b petition? Thank you for your time. |
Re: "Bona fide" termination of the H1-b
On Tue, 02 Jul 2002 21:20:07 -0700, Gui2 wrote:
> I hold a H1-b Visa (2 years with a first employer, transfered to a new employer 12 > months ago). My current employer told me 2 weeks ago that he has to "let me go" due > to "lack of work". I have been given a 2 month notice with no severance package. I > have no document yet saying that I will be laid off. > > My understanding is that: (please correct me if I am wrong) The Department Of Labor > requirement states that an employee, who is temporarily non-productive due to the > employer's request or lack of work, must continue to pay its H1B employee/s regular > wages. The requirement ceases with a ‘bona fide’ termination. > > The preamble to the DOL regulations (but not the actual rule) also SUGGEST that a > bona fide termination occurs only when the employer notifies the INS of the > termination, the H-1B petition is cancelled, and the return air fare obligation is > fulfilled. The other way round: in case of a bona fide termination, the employer is supposed to notify INS and pay your return air fare - but this is not the DEFINITION of bona fide. Your employer telling you that they will have to let you go is indeed clearly a bona fide termination. It doesn't even require anything in writing. > > My questions are: > > 1- Can my employer meet the requirements of the "bona fide" termination before the > official cancellation by the INS? In other words: Does my employer still have to > pay me after I've received a letter that "officially" states that I got laid off? The employer does not have to pay you after the termination is effective. > 2- How long does it take the INS to cancel a petition? This is effective immediately. INS will not send any acknowledgement. > 3- Is it in my interest to ask for this cancellation in order to get paid for this > given period of time or could it impair/delay a possible future H1-b petition? It is not in your interest; it simply does not matter. Do be sure to file for a change of status to tourist (or whatever else you may qualify for) before the termination is effective, unless you plan on leaving the US that very day. Ingo |
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