H1B, Layoff and Severence

B

bozoh

Registered Users (C)
Hi All,

I am posting this for a friend. I posted it in the H1 forum but nobody seems to be accessing that forum.

My Friend recently got laid off. One Friday he walked into his office to learn that he will be without a job from the following Monday. His company will be giving him a severence package for another 2 months. However, his company told him to leave the country within a month since they will cancel his H1 visa after a month.
My questions :
1. Can the company pay him severence after canceling the H1? Legally, don't you need a H1 Visa to pay a temp worker?
2. Does he have to leave the country in a month or in another 2 month?

The company's lawyers don't know the rules themselves and so I thought I will ask some of the gurus in this forum.

Thanks for an early reply.
 
Your friend can collect the severance pay because it is paid for what he worked at that company. Even if he is asked to leave the country, he is entitled to that package.

As far as how long he should wait before finding a new job, sadly it is 10 days. But since BCIS sometimes will not create any problems for 1-2 months gap. BCIS will know this as it asks for pay stubs. The severance package would show as severance and BCIS knows when your friend is laid off. If he has any leads in the next few days, it is fine. Otherwise he needs to find some employer who can put him in status.
 
Serverance is supposed to be paid the day he is laid off. It is OK to get severance pay even not on H-1B status anymore because serverance pay is based on the work he did before he got laid of.

He is out of status the day he is laid off and theretically he should leave USA right away. However, if his I94 has not expired, he is not illegal in this country. As long as he doesn't do anything to draw INS attention, he should be able to remain in this country without penalty.

If he want to stay in this country, the best strategy is to try to find anoter H-1B job as soon as possible or transfer to another visa status like F1, H4, F2, B1-2 etc.
 
"He is out of status the day he is laid off and theretically he should leave USA right away. However, if his I94 has not expired, he is not illegal in this country. As long as he doesn't do anything to draw INS attention, he should be able to remain in this country without penalty."

This is true if company doesn't cancel his H1, but since they have told him that they WILL cancel his H1B, siutation is different here.
 
Kirkool is right. After H-1B cancellation, one became illegal instead of out of status. However, It takes INS months to process H1B cancellation. If I am right, after H-1b cancellation, INS will inform you that you start to accumulate illegal presence days. At that time, one needs to leave the country right away to avoid 3/10 years bar.
 
he should try and find another h1 position as soon as possible.Or there are consulting companies that will hire you on an H1 and then keep you on the bench without pay......
 
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