employer declines 2 weeks notice

[Mailesh]

Hi, I am currently on H1B and I gave my boss my two weeks notice on Friday. I told him I am going back home to start my own business, not going to a competitor or rival company. My boss was very angry because the company had just paid for my H1 extension in Apr and he thought I will stay another 3 years.

On Saturday he called to say that I do not need to return to work on Monday.

1. Is this considered being fired and are they responsible for paying for my return flight home? Some people say once you give notice it is considered quitting even if they don't let you stay the 2 weeks.

2. If I am legally required to leave USA immediately, I cannot afford a same day flight out tonight. One way flights are over $2500 right now. What should I do to switch to a visitor visa? Will the paperwork be even approved in time since I am only staying for another 2 weeks?

3. My boss said that they would not pay my last paycheck or unused vacation days because I owe them money for H1 attorney fees. Is this legal? I know they cannot ask me to pay back filing fees but thy said they used a lawyer who charged them fees. I never signed anything that said I would pay them back if I quit.

Thanks in advanced for any help.

[chtummala]

it depends on your agreement with u r boss

[pontevecchio]

You have a few days to leave in any case. It begs the question as to why you did not wait for your last pay check before dumping him. If you stay for another 2 weeks and leave you will be OK.

[rahul412]

3. My boss said that they would not pay my last paycheck or unused vacation days because I owe them money for H1 attorney fees. Is this legal? I know they cannot ask me to pay back filing fees but thy said they used a lawyer who charged them fees. I never signed anything that said I would pay them back if I quit.

Thanks in advanced for any help.

That's not fair. They hired attorney for their business and obviously they have to pay for them.

[t75]

Attorney fees are one of the few that can be paid by the H1B worker. However, you should have all of your employment contracts and communications reviewed by an attorney to determine your obligations and rights.

[JoeF]

Yes, that would be considered being fired. And they would have to pay for your return flight.

It is of course a rather unprofessional thing to do from the employer. An emotional response instead of a business-like response.

File a COS to B2.

And if the employer doesn't want to pay the outstanding salary/unused vacation, file a complaint with DOL on form WH4.

[chakrakr]

Attorney fees are one of the few that can be paid by the H1B worker. However, you should have all of your employment contracts and communications reviewed by an attorney to determine your obligations and rights.

Partly correct. Attornney fee is recoverable only if it meets the following , " the deduction must have been revealed to the worker prior to the commencement of employment and, if the deduction was a condition of employment, had been clearly identified as such"

In practice, from what I understood from various Attorney blogs and conference calls, DOL mostly does not allow employer to recoup ANY cost associated with H1.

[Mailesh]

Hi everyone, thanks for the replies. This is a very small company with no real HR department so there was never any formal or verbal agreement or documentation regarding the H1B attorney fee. My employment contract was the standard one given to US employees which obviously says nothing about visa fees. It does say that unused vacation time will be paid out so I am definitely going to fight him on that.

I had been with the company for ~3.5 years with 1 original H1B petition and 1 renewal and I find it a bit ridiculous that my boss wants money back for fees paid so long ago.

pontevecchio: Our pay period is staggered so they paid you on Fri for the previous 2 weeks worked. For example, I received a paycheck on Aug 3 when I gave notice, but that was for work done from Jul 16-27. Even if they fired me on the spot, they would still need to pay me for work already done from Jul 30-Aug 3.

I had originally planned to leave after the 2 week period so my flight home is not till Aug 18. Is this overstaying too many days? I still have over 2 years on my I-94 stamp.

[pontevecchio]

These few days out of status should not matter.

[chakrakr]

You will be out of status beyond your last day of work (I-94 is immaterial). However, being out of status for just 2 - 3 weeks do not have any major consequences.

[JoeF]

pontevecchio: Our pay period is staggered so they paid you on Fri for the previous 2 weeks worked. For example, I received a paycheck on Aug 3 when I gave notice, but that was for work done from Jul 16-27. Even if they fired me on the spot, they would still need to pay me for work already done from Jul 30-Aug 3.

Correct. And if a person is laid off, the remaining salary is due immediately at layoff time.

The correct way a "normal" company handles this is to give the person a check for the outstanding salary including payment for vacation time at the time when the person gets laid off.