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"Bona fide" termination of the H1-b

"Bona fide" termination of the H1-b

Old Jul 3rd 2002, 1:08 am
  #1  
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Default "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.
Gui2 is offline  
Old Jul 3rd 2002, 7:20 am
  #2  
Ingo Pakleppa
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Default 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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