H1b validity during severance pay

[simplydeb]

Hi,

 My employer has terminated me and is paying 2 months of severance pay on a biweekly schedule.
After that employer is going to withdraw my H1b visa. How much time do I have to find another employer to transfer my H1b?

Thanks,
 

Sam

[wiweq]

Severance package doesn't hold you H1b. At the moment you are terminated from your employer your H1b is gone. From the day of termination you are no more on employer sponsored work. Do COS before or on the day of termination.

[rahul412]

Hi,

 My employer has terminated me and is paying 2 months of severance pay on a biweekly schedule.

After that employer is going to withdraw my H1b visa. How much time do I have to find another employer to transfer my H1b?

Thanks,

 

Sam

Once out of job, you will be out of status.

Only option: file COS.

[0407]

Are you under WARN notice? 2 months pay rhymes with WARN notice.  If it is WARN it is somewhat grey area.

If you are to join some other employer during WARN notice, some attorneys say that your new H1B petition

for duration of WARN should be concurrent (this would mean that other H1B is still valid in this duration).

This is essentailly because language of the notice reads that you are still employed and may be asked

to join back the job after two months. I have had previous experience with WARN. Our attorney told us that

till we are getting WARN salary (two months) we are in status. Our severance began after the WARN pay

and she said that we are out of status after the last WARN pay check

[wiweq]

There is nothing called warn notice for H1b. Once you got termination letter/ email, your H1b is over.

[t75]

OIP has been terminated - ie severed.

[0407]

"There is nothing called warn notice for H1b. Once you got termination letter/ email, your H1b is over."

@wiweq. 

 

You are wrong.  

[wiweq]

"There is nothing called warn notice for H1b. Once you got termination letter/ email, your H1b is over."

@wiweq. 

 

You are wrong.  

Please explain.

As per my knowledge/ experience, H1b is valid until employer-employee relationship is valid. The termination letter breaks this relationship and that nullifies the H1b. The severance package doesn't create any employer-employee relationship. Please correct me if I am wrong.

[JoeF]

"There is nothing called warn notice for H1b. Once you got termination letter/ email, your H1b is over."

@wiweq. 

 

You are wrong.  

It is YOU who is wrong.

There is no such thing as a "warn notice." Period.

A person who is laid off is laid off and there is no employer-employee relationship anymore. That in turn makes the H1 invalid.

[0407]

Wiweq,

This is my personal experience. I got a WARN notice  ( I will make up some dates for the sake of discussion). on 

Jan 31 telling me that my position will be eliminated on April 4 and that I need not come to office starting Feb1.

The notice further said that business needs could change and decision to eliminate the position could be reverted

before April 4. (This is the standard language of WARN notice). In Legal terms of DOL, employer is bound to pay

you salary in the WARN period.  I joined my new Employer on Feb 6. Now because I was on WARN, my new H1B

petition was amended to say that it is a concurrent  employment till April 4.  April 4 was my last day on pay roll.

Severance started on April 5.

 

Now it is true that certain others joined new employers without a concurrent petition. But my employer's

attorney was very clear that to keep things clean it has to be a concurrent petition. This tells me that 

my other H1B in the WARN period was still active as far as the law is concerned. 

[JoeF]

Wiweq,

This is my personal experience. I got a WARN notice  ( I will make up some dates for the sake of discussion). on 

Jan 31 telling me that my position will be eliminated on April 4 and that I need not come to office starting Feb1.

That is something specific to THAT PARTICULAR employer.

It has absolutely NOTHING to do with the H1.

There is NO warn notice for an H1. Period.

[chakrakr]

All said and done,  multiple Attorneys have expressed an opinion that CIS normally does not go beyond pay stubs to verify current status.  In cases like OP,  normally a H1 COS will sail through during the period he/she is getting the pay stubs (through Severance Pay) .   Is  OP legally on H1 during this period -- I do not know (some Attorney might pitch in). 

[wiweq]

0407,

warn period, notice period, training period all these periods are employer specific, nothing to do with H1b. In so called your warn period, your employee- employer relationship was still there and thus the H1b was intact. Once the relationship is terminated, H1b is gone. I believe you understand the meaning of termination. Termination means employer or employee declares that no more connection with each other. This termination should be documented, such as paper document or email.

[0407]

@Joef,

"That is something specific to THAT PARTICULAR employer.

It has absolutely NOTHING to do with the H1.

There is NO warn notice for an H1. Period."

 

Joef, WARN is a law in US. It is not specific to any employer.   

 

"There is NO warn notice for an H1. Period."  

If you are right then I guess most of immigration attorneys  in US are wrong

[0407]

0407,

warn period, notice period, training period all these periods are employer specific, nothing to do with H1b. In so called your warn period, your employee- employer relationship was still there and thus the H1b was intact. Once the relationship is terminated, H1b is gone. I believe you understand the meaning of termination. Termination means employer or employee declares that no more connection with each other. This termination should be documented, such as paper document or email.

I do understand the menaing of termination. That is the exact reason I asked him whether he got a WARN notice. 

[0407]

@Joef.

 

"A person who is laid off is laid off and there is no employer-employee relationship anymore. That in turn makes the H1 invalid.

 

Employee-Employer relationship continues during WARN notice.   If you just want to ignore and call it wrong I can't help it.

I am sharing information with the person who posted it based on what I have experienced myself. It is up to him/her

to do what he sees best. 

[rahul412]

@Joef.

 

"A person who is laid off is laid off and there is no employer-employee relationship anymore. That in turn makes the H1 invalid.

 

Employee-Employer relationship continues during WARN notice.   If you just want to ignore and call it wrong I can't help it.

I am sharing information with the person who posted it based on what I have experienced myself. It is up to him/her

to do what he sees best. 

If EE relationship continues then he is still the employee of that company on H1 and he should be getting paid.

[wiweq]

 

@Joef,

"That is something specific to THAT PARTICULAR employer.

It has absolutely NOTHING to do with the H1.

There is NO warn notice for an H1. Period."

 

Joef, WARN is a law in US. It is not specific to any employer.   

 

"There is NO warn notice for an H1. Period."  

If you are right then I guess most of immigration attorneys  in US are wrong

 

There is no law called 'warn/ notice' in USA. In most of states jobs are at will. They can terminate you on the same day of hiring/ and the employer expects same from employee. No questions asked! Please update your knowledge on US labor laws. 

[JoeF]

 

Joef, WARN is a law in US. It is not specific to any employer.   

 

"There is NO warn notice for an H1. Period."  

If you are right then I guess most of immigration attorneys  in US are wrong

 

There is NO such thing in the law. If you claim otherwise, please provide a link tot he law.

 

Every immigration lawyer in the US will tell you that you are out of status from the day of layoff.

 

The bottom line: this "warn" stuff is from your employer. It has nothing to do with the H1 at all.

There is no such "warn" stuff in the law.

[JoeF]

@Joef.

 

"A person who is laid off is laid off and there is no employer-employee relationship anymore. That in turn makes the H1 invalid.

 

Employee-Employer relationship continues during WARN notice.   If you just want to ignore and call it wrong I can't help it.

I am sharing information with the person who posted it based on what I have experienced myself. It is up to him/her

to do what he sees best. 

If the employer-employee relationship continues to exist, then the person continues to be an employee of the company and isn't laid off.

Such person obviously has to get paid.

A person who is laid off is laid off, and has no employer-employee relationship anymore.

There is absolutely no "warn period" stuff in the immigration law. All that is just something specific to your employer. It has nothing at all to do with the H1.

For the H1, it only matters if the person is laid off or not.

Please get that into your head. There is no "warn period" for an H1. There is not, and has never been. Period. End of story.

[chakrakr]

Those who are saying there is nothing like WARN notice ,  or it is specific to Employer probably do not the law.   WARN stands for Worker Adjustment and Retraining Notification .  It is a law by which, under certain circumstance,  employer need to provide a 60 day notice before a mass layoff.

 

I agree ,  in OPs case it does not look like WARN notice  but WARN notice DOES exist in the legal world .    http://www.doleta.gov/programs/factsht/warn.htm

[chakrakr]

There is no law called 'warn/ notice' in USA. In most of states jobs are at will. They can terminate you on the same day of hiring/ and the employer expects same from employee. No questions asked! Please update your knowledge on US labor laws. 

 

Not right.  you need to update your knowledge about Labor Law. 

[rahul412]

Okay, so the bottom line is

 

"WARN notice period exists but no way related to H1. If the employee is getting paid during that period then he/she is still on H1 legally".

 

Correct me if the above statement is wrong.

[JoeF]

Those who are saying there is nothing like WARN notice ,  or it is specific to Employer probably do not the law.   WARN stands for Worker Adjustment and Retraining Notification .  It is a law by which, under certain circumstance,  employer need to provide a 60 day notice before a mass layoff.

 

I agree ,  in OPs case it does not look like WARN notice  but WARN notice DOES exist in the legal world .    http://www.doleta.gov/programs/factsht/warn.htm

Yes, but that has nothing to do with the H1. The OP asserted that it has to do with the H1, which it doesn't.

Some states, e.g., California, have even more stringent laws in case of mass layoffs. See, e.g., the mass Yahoo layoffs last year.

And mass layoffs are something rather different than single-person layoffs.

[0407]

@Joef,  

 

You can think and argue whatever is convenient for you. WARN is a labour law. Employer is required to give WARN notice

when he lays of more than 50 people or certain percentage of work force. As per the law he is required to pay salary 

and all usual benefits that come with the employment.  In WARN period employee is still employed. It not being a part

of immigration laws doesn't change anything. You can argue whatever you want to, I know that I had concurrent H1B

for the period of WARN notice. Only those of us who didn't tell new employer that we are under WARN were filed

a normal H1B transfer. 

 

I have never suggested that person who began the thread is under WARN. I am asking him if he is WARNed. I even

know those colleagues whose H1s were filed few weeks after WARN notice was served but before the expiry of WARN

notice. Their H1s were approved too. 

 

"Please get that into your head. There is no "warn period" for an H1. There is not, and has never been. Period. End of story."

You don't need to get belligerent if someone doesn't agree with you. It is an open forum here.