H1b Cap Gap and employee termination

[always_RFE]

Hello All,

 

My fiancée is currently on cap gap that is set to expire on Sept 30th.

Her application for the h1b visa has been selected and remains pending with USCIS for the last 175 days. We have not heard any communication from USCIS.

Her company has now decided to terminate her starting Sept 30th due to invalidity of status.

At this point, I'd like to know what our options are,

1. Is there anything that can be done to expedite the process further?

I have already contacted our local congressman and her company lawyers are currently processing an expedite request.

2. How will termination affect the pending application?

- Will her current h1b application that remains pending with USCIS be void?

3. Her company decided to terminate her instead of an unpaid leave because it would be easier - is immigration invalidity due to delay by USCIS grounds for termination?

- Is this enough grounds to sue?

4. What other options does she have?

- If her current company terminates her, can she join a consultancy that would allow her to be on unpaid leave while the application is in process? This is to ensure that termination from the first/original company doesn't lead to voiding of her h1b application and then transfer h1b once approved?

[JoeF]

The company by law has to inform USCIS when she no longer works there.

There is nothing you or she can do. Employment in the US is at will, meaning both sides can terminate the employment relationship at any time.

And it isn't grounds to sue.

Going to some consulting company wouldn't help, either, because the H1 petition will get canceled when the employer informs USCIS. A transfer would also require that she has started working for the original employer on the H1.

The H1 is gone, sorry.

 

[pontevecchio]

1. No.

2. The pending application will be moot if they let her go.

3. No grounds to sue.

4. She needs to leave.

[Provence]

She will, unfortunately, be out of status beginning Oct 1.  The company is required by law to inform USCIS that she is no longer an employee and her H1 petition would be rescinded. She should exit the US. 

[mjk7ha]

Hey, I am in the same situation, my case is was assigned to WAC (California), which I know is the slowest, is there anything I could do? My employer chosen october 15th as the termination (if I do not get approval by then), so I have little time but from what I understand I have nothing to do, is it correct? Or can I call/contact/do anything?