Layoff pushed using unpaid leave, H1B

[AKvisajourney 0]

My startup before laying off folks, just to give them enough time to find new job, pushed termination date using unpaid leave.

So i emailed HR asking for 1 month of unpaid leave, which is as per leave policy of company. And HR replied me back with exit email, "that they accept unpaid leave and termination papers will be sent close to the end of leave."

 

Is that acceptable to USCIS, because last month paystubs will be missing when next employer files for H1b transfer, so will those 30 days considered in the 60 day grace period or not?

 

Edited June 7, 2020 by AKvisajourney

[xyz12345 260]

just an fyi

https://www.morganlewis.com/pubs/h1b-workers-unpaid-nonproductive-time-and-terminations-during-the-covid-19-crisis-an-faq-for-employers

 

If you read the above article, you can basically sue your employer for back wages if the unpaid leave is for furloughs or shutdowns.

 

The article also says that the following:

"H-1B workers must generally be working in the position described to be considered to maintaining lawful status. The USCIS’s regulations do recognize, however, that certain ‘‘extraordinary circumstances’’ may exist that would allow the agency to consider an H-1B worker to have maintained status despite an interruption in employment or work performed, and the agency has indicated that it could exercise its discretion favorably in a benching situation."

 

 

So you really don't know what they'll decide in your case. To be on the safe side, just treat that unpaid leave as the first 30 days of your 60-day period.

 

imo It would have been much better if this were paid leave though.

 

 

 

 

[AKvisajourney 0]

Yes, benching of H1b employee is not allowed but unpaid leave as per company policy is allowed for everyone including h1b employee.

3 hours ago, xyz12345 said:

just an fyi

https://www.morganlewis.com/pubs/h1b-workers-unpaid-nonproductive-time-and-terminations-during-the-covid-19-crisis-an-faq-for-employers

 

If you read the above article, you can basically sue your employer for back wages if the unpaid leave is for furloughs or shutdowns.

 

The article also says that the following:

"H-1B workers must generally be working in the position described to be considered to maintaining lawful status. The USCIS’s regulations do recognize, however, that certain ‘‘extraordinary circumstances’’ may exist that would allow the agency to consider an H-1B worker to have maintained status despite an interruption in employment or work performed, and the agency has indicated that it could exercise its discretion favorably in a benching situation."

 

 

So you really don't know what they'll decide in your case. To be on the safe side, just treat that unpaid leave as the first 30 days of your 60-day period.

 

imo It would have been much better if this were paid leave though.

 

 

 

 

Yes, benching of H1b employee is not allowed but unpaid leave as per company policy is allowed for everyone including h1b employee, right?

[igoyougoduke 1,656]

5 hours ago, AKvisajourney said:

Yes, benching of H1b employee is not allowed but unpaid leave as per company policy is allowed for everyone including h1b employee.

Yes, benching of H1b employee is not allowed but unpaid leave as per company policy is allowed for everyone including h1b employee, right?

that is totally fraud.

[AKvisajourney 0]

19 minutes ago, Donald120383 said:

that is totally fraud.

Can you elaborate? 

Are h1b employees not allowed to take unpaid leave like every other employee?

[igoyougoduke 1,656]

1 hour ago, AKvisajourney said:

Can you elaborate? 

Are h1b employees not allowed to take unpaid leave like every other employee?

Extending employment date by using unpaid leave is not per the law.  By law employers cannot do it .. this will be trouble in the long term for your case 

 

[AKvisajourney 0]

What if i find a job, in the within these 30 days instead of 60 days.