Backdated employment termination and pending case with department of labor

[Rohaan Reddy]

Hi, 

I am on H1B since May 2016. I had approached Department of Labor in the month of July to register a complaint against my employer on payroll issues. I had been assigned an investigator in the month of Aug 2017 from DOL.  I have submitted all the necessary evidence that my payroll was not being run from past several months, the investigation is still on going but mean while my employer sent me an email on Sep 8th 2017 stating that he is reconfirming that my employment was terminated on July 25th 2017. I was shocked seeing this email as I never received any prior notice regarding my employment termination. It looks like my employer is trying to retaliate as I approached DOL and terminated my employment backdated and sent it to USCIS for withdrawal of my H1B. Upon checking the case status with USCIS, I could see that USCIS received the petition on Sep 18th 2017 and its under review. 

I reached out to the DOL investigator and conveyed him about the backdated employment termination, He asked me to reach out to USCIS and inform the same or send an email or a mail mentioning that I have a pending case with DOL. I had emailed and also sent an overnight mail with File number provided by DOL and also the EAC number. I have the following Questions and would really be thankful if I could get some guidance and clarity on my current situation.  

1. Would I be considered out of status as my employment was terminated backdated on July 25th 2017 and I was informed only on Sep 8th 2017 ?

2. What date would USCIS consider for revocation? July 25th or Sep 8th ?

3. Since I mailed USCIS about the situation and pending case with DOL, would I receive any grace period from USCIS  and how would USCIS consider this situation ?

4. Would I be considered out of status based on my employment termination date by my employer or the date USCIS revokes my H1B. ?

5. What options do I currently have ?

 

[JoeF]

Wow. This is a new one.

Assuming you have other work-related communication with the employer from a later date, forward all that to DOL.

It is unlikely that the employer told USCIS back in July that you no longer work there. If he didn't, the employment relationship wasn't terminated, and he has to pay you.

The rule is: the employer has to inform both you and USCIS that the employment is terminated. He didn't inform you, and my guess is he didn't inform USCIS at that time, either.

So, this looks like a desperate attempt by the employer to retaliate against you and intimidate you. Stay strong!

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

 

[Rohaan Reddy]

Thanks a lot for the information. I strongly feel and agree to your point that my employer did not inform USCIS about the employment termination in July but instead has reported in the month of Sep 2017 with the termination date as July 25th 2017. 

I have forwarded all the evidences I have to DOL. My concern is how will USCIS look into this issue and I am wondering if the letter I sent to the USCIS processing center has reached the concerned department. Also based on the bona fide termination my employer has not given me any prior notice of termination nor cleared my wages, they have only offered me a return ticket. 

[JoeF]

I wouldn't trust any letter to USCIS reaching the appropriate department. Letters get put into a big pile, and it is unlikely that the officer who handles the employer letter gets your letter.

I think you should talk to an immigration lawyer, e.g., from Murthy. Lawyers have different channels into USCIS, through AILA. They can get things to the right people.

I think the employer is in a bad position, and just hopes that you give up.