Need help with H1B status after termination

[Confused Immigrant]

My wife was recently asked to resign from her job by her employer. She has her H1B approved (she is on F1) and its validity starts from October 1st. Her last date at the company is October 13th.
In the separation agreement the company also offered to pay her a reduced salary ( ~60% of her current pay as regular biweekly paychecks) till December 15th but without other benefits. I think this is the severance pay. The company has also told us that they will not revoke the H1B petition till my wife is able to find a new job. 

We are right now confused about a few things. Please help with the following questions:

1. When does the grace period for my wife start before she goes out of status? Is it Oct 13th or Dec 15th? Is the grace period 10 days or 60 days? I am trying to gauge how long she has to find a new job.
2. Is applying for a change of status to H4 the best course of action if she is not able to find a job before she goes out of status? (I have an H1B)
3. If yes to the previous question, when should we apply for the COS - Before Oct 13? Before Dec 15th? or before the grace period of 60 days end?
4. Is it possible for her to apply for jobs while on H4 and switch back to H1B (cap exempted?) if she finds a job? 

Thanks in advance for any help/information that you can give.  
 

[pontevecchio]

Is this a one man operation or a desi operation?

I ask because companies would have the H1 revoked as soon as they decide they have no job available. If they do not revoke the H1 before she joins then she can demand that they live up to H1 obligations or comp[lain to the DOL. Based on that complaint she MAY be able to get another H1 sponsor. You cannot normally transfer if you have not worked for the initial sponsor.

[JoeF]

The company is required by law to inform USCIS when she is no longer working there. That can't be delayed. If they don't inform USCIS, the employment relationship hasn't properly ended, and they would have to continue paying her the full salary.

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."

 

[Confused Immigrant]

Okay. I'll check with them about revoking H1B again. Any information regarding my other queries?

[Confused Immigrant]

I am assuming since my wife is receiving pay check till Dec 15th (and that is mentioned as her termination date in the agreement) the company won't revoke the H1B petition until then. 

[Confused Immigrant]

Also she has been working for this company for over a year now with her F1 EAD.

[JoeF]

17 hours ago, Confused Immigrant said:

I am assuming since my wife is receiving pay check till Dec 15th (and that is mentioned as her termination date in the agreement) the company won't revoke the H1B petition until then. 

Then they would have to pay her the salary as listed on the LCA. "Reduced salary" is not allowed on H1.

 

[Confused Immigrant]

Could any of you please answer my other queries?

[JoeF]

1 hour ago, Confused Immigrant said:

Could any of you please answer my other queries?

Lots of things depend on if she gets paid properly. If she goes out of status because of the employer not terminating the employment properly and paying less than required by law, she can't transfer, unless she files a complaint with DOL.

Understanding and following the H1 rules is important. Does the employer use an immigration lawyer? If they do, they would know about the rules.

[Chai]

Let's stick to the fact that Oct 13th would be her last day of employment. Count grace period of 60 days from that date. However, if I-20 is expiring before grace period limit, then date mentioned on I-20 is the limit. No additional grace period allowed. 

Change of employer and H1-B transfer: Can only be done only when her H1-B status kicks in with present employer. Technically, working for 1 day on H1-B is enough. Based on pay stubs from Oct 1 to Oct 13, she can transfer H1-B.

Change of status: Apply when all efforts are exhausted. Preferable to do ~3 weeks prior to grace period limit. 

Applying and working on H4: Can only be done if spouse's I-140 is approved and she has approved H4-EAD. This is irrespective whether employer is cap-exempt/ non-cap exempt. 

It is advisable to ignore December 15th date and put your efforts in changing employers after Oct 1. She can certainly start interviews now. 

[JoeF]

If she doesn't get paid according the the H1 rules, she would be out of status, so the 60 day stuff wouldn't apply.

So, ahe needs clear info on that first.

[Confused Immigrant]

@JoeF @Chai @pontevecchio
Thank you all of you for your replies. 

She checked with the company about the reduced pay and they said it was an oversight and it was not their intention to give reduced pay. (I could see that happening as the wording in the separation document was 'normal bi weekly salary of 'x' $' where x was the reduced amount and we assumed that this was intentional). Anyway they apologized for this and sent a revised document with the regular bi weekly salary.

So this would mean her grace period would start in December right? 

 

 

[Chai]

Yes, technically the grace period will start from December. If I were in her shoes, I would ignore the December date even though, it gives me privilege to remain in valid status. I would trust the employer only for initial days in October so that it can generate pay stub- that's what I desire to kick in my H1-B.