Terminated before joining on new H1B

[rhameed]

My wife worked with a company for two years on OPT and recently got her H1 visa stamped so she could resume work with them. She entered US on H1 in mid May and was planning to resume the work on mid-June with her new H1. However some differences arose with her company and they decided to let her go. So now we seem to be in a tough spot in terms of her status.

She has requested her company to let her join and retain her for a couple of months so she could try and find another job and get her H1 transferred. However we do not know if they will agree agree. If they do not allow her to join then how much time does she have before she goes out of status? Also if she is able to find another job quickly, would she be able to do an H1 transfer considering that she never started the job on her current H1, and would not have any recent paystubs. Would appreciate any responses in this regard as we need to figure out our strategy pretty quickly!

[wiweq]

On H1b, there is no grace period. Beneficiary is considered out of status just after the day of job termination.

She can switch to H4, or B2 and look for employers.

[rhameed]

Thanks for your response! She has not been issued a termination notice yet, and we are working to apply her change of status to F2 ASAP (I am on F1). However since she is not working even now we are afraid that USCIS might consider her already out of status when we apply for COS since she would not have a recent paystub. The understanding was for her to resume her work in mid-june and obviously she was going to be in status in the mean time. However if the company gives her a termination letter on say June 10th, and she never resumes the job then she may not have a way to establish that she was employed in the period from mid-may to her termination date. Any thoughts about what would her status be in that case?

[t75]

How could your wife expect her company to join them when she apparently was terminated for a cause? They have no obligation to allow her to job hunt while being required to pay her for doing nothing. She can COS to H4. Why did she wait so long to report?

If this posting reflects her expectations, she will be very disappointed.

[rhameed]

How could your wife expect her company to join them when she apparently was terminated for a cause? They have no obligation to allow her to job hunt while being required to pay her for doing nothing. She can COS to H4. Why did she wait so long to report?

If this posting reflects her expectations, she will be very disappointed.

Thanks for your response!

We are not relying on her company to extend her job. We have already started the process of getting her converted to F2. Before we apply for her COS she needs to be added to my I-20 which is under process as of now. Also we are no longer looking to find another job for her. Our aim is just to save her status and make sure she could legally stay in US.

However when she goes for change of status she has to demonstrate that her current stay in US is legal. And that's where the confusion is. We don't know if USCIC would consider her current situation to be in status or not. She has not been officially terminated yet. It has become clear in talking to her manager that her engagement with the company would not continue. However HR hasn't approached her so far and a termination process has not been started. Officially she is still set to resume in mid-june.

Also let me explain her employment situation a bit more. Before going for her H1 stamping my wife was on maternity leave because we recently had a baby. The company had agreed that once she is back in US with the H1 visa, she could take some time to arrange a nanny and summer school etc for our kids so she could work full time. There was also an understanding with her manager that she would get some flexibility in working schedule such that she could be in office for less hours and do some of her work from home. However in the months that my wife was away, quite a few changes happened in the company. The engineering team expanded quite a bit, a new head of engineering came in, the company got new customers etc. So now that my wife is back she was told that she could no longer have any flexibility and also should be prepared to spend extra hours in addition to being in office 9-6. My wife told her manager that this would not be practical for her and she was told that in that case they cannot have her continue. We respect that decision because the company obviously has to cater for its own needs. Our concern is just to save her status. My wife was one of the very early members of the team (she was the second member of the engineering team). So they might give her enough consideration to let her continue for a month or two and get some paychecks so she could clearly establishing her status. However if that doesn't happen then we need to ensure that she is still in status.

[rhameed]

Also let me make it clear that we are not expecting the company to pay her while doing nothing. Of course if they let her continue then she will work for them in that period. Her work is fairly valuable for the company as she designed a core part of their platform. And her loss is actually a setback for the company as well.