H1B visa status during Corona lockdown - Grace Period?

USA H1B Visa
1

My daughter is working as a dentist on H1B visa in Massachusetts, USA. Due to Corona pandemic, all dental clinics in USA are closed from March 18, 2020 till May 3, 2020. She got her last pay on April 3, 2020 for work done by her on March 16, 17, 2020. No pay credit on next pay day ie April 17, 2020.As per her employment contract, employer or employee have to give 2 months notice for separation. Employer has not communicated with her since March 18, 2020 except a text message stating that clinic is closed till May 3, 2020. What is her job status ? Since she is not doing any work, has 60 days grace period already kicked in for her? If yes, from which date? If no, the 60 days grace period starts upon happening of what event ? Her I94 has end date of February 10, 2023. Her I797 is valid from February1, 2020 to February 10, 2023.

3

Legally, the employer is supposed to inform her and give her termination notice. If not, it is a compliance issue. Ask her to check with the employer and confirm regarding payment. They are supposed to be paid, even on bench or free time, if there is no work.
If the employer choose not to hold the employee, they need to send a layoff notice and that’s when the 60 days grace period starts. it is Labor Department requirement to be paid…You can report to Dept of Labor.

4

I spoke to an attorney today. He said that USCIS is not concerned about my daughter’s agreement with her employer and non compliance of agreement is an issue between 2 of them. He told that as far as USCIS is concerned, her employer has not run her pay roll of April 17, has not communicated with her, USCIS will treat 60 days grace period to start from March 18. He told that she will be out of status on May 16. I am disturbed and confused. Kindly clarify the rule applicable in her case.
She has found a new employer who is willing to file her H1B visa transfer within 60 days grace period but he is giving a job start date of September 1. What should she do ?

5

Well, technically, USCIS only looks at if the employee or H1B holder is maintaining status or not. One of the key things for that is payment of salary and job. As per DOL, they need to pay for Free time , check : https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62I.pdf

Now, her first step is to confirm, if she is still employed or not. If employer confirms, then it is about getting paid for the period.

To be safe, she should join a new company soon. Use the non-responsiveness of employer as a cause and then apply for Transfer.

Now, she need to join the company within 60 days that’s the catch with layoff…Talk to another reputed law firm and double confirm.

Read 60 days grace period for H1B

6

My main concern is validity of her stay in USA from immigration point of view of USCIS so that her stay in USA is not treated as illegal.
I am looking at 3 options :

  1. Her current employer puts her on unpaid leave for now and she continues with him once govt. lifts dental clinic closure instructions. Whether her 60 days grace period still kicks in? If yes, when?
  2. Her new employer files her change of employer petition within 60 days grace period. As her new employer is giving start date beyond 60 days grace period, she leaves for India within 60 days grace period or as soon as flights resume whichever is later and comes back to usa near start date of new job with approved petition of her new employer. In this case, does she encounter any problem with immigration at stamping at US embassy in India,USA airport or afterwards ?
  3. Her husband is on H1B with his I140 approved. She files for H4 so that she can stay back in USA. Simultaneously, can her new employer file for change of employer petition or she loses her H1B status immediately on filing of her H4 petition ? Kindly guide.
    I request your guidance from maintaining her legal immigration status. Breach by current employer is not of immediate concern.
7

Kumar ji,
Waiting for your helpful expert guidance. Points raised by you are really very helpful for bringing clarity to our perspective. Feel obliged for your selfless service.

8
  1. There is no unpaid leave concept with H1B. The day employer does not pay, that is the start date for 60 days grace period.
  2. Yes, that is possible. Should not, if she departs soon. Also, she needs to apply for COS to B2 now immediately, so that her stay in US is legal.
  3. Yes, that is an option to file for H4.
    If she files an employer, then she may consider filing another COS to H1B, but this has to be planned carefully and sometimes may or may not work with timing. The reason is, she would not have status for second COS to H1B. Discuss with attorney and then plan carefully.
9

My new company filed LCA on 5/8 and my H1B grace period is over on 5/13. They are thinking to withdraw my application as their lawyer suggest that waiting time will be 3 to 5 months and I also need visa stamping. Since US consulate offices in India are closed, I was thinking to go to Mexico either Nogales or Tijuana for stamping, but I cannot see the appointment dates on them. Can anyone suggest what are my possible options?

Also,

  1. Will it take 3-5 months no matter what to get H1B transferred since I have passed my grace time, and no premium till June 29th.

  2. If by luck I get visa transferred, what are my options to get stamping?

Thank you,
Gautam