H1B travel question

[jk_consultant]

Hi,
My company laid me off on Nov 5th.

They will have me on their payroll and sponsor my H1B till Jan6th. They will notify USCIS of my termination after Jan 6th

I plan to travel to India before Jan 6th (coming back to US on Dec 21st)

Is it safe to travel during this period? Any problems that I might encounter at port of entry?

Please advice.

[knowledgeable]

Legally ...

... they have to pay you till 6th Jan 2009, so technically they're not laying you off until then. A company cannot fire a H1B emloyee in November and keep the employee on any payroll until Jan 6th.

Secondly, once you're fired, you're out of status, so you need to leave the country anyway and cannot return until you have a valid job and a properly transferred H1B to the new eployer.

Take care and good luck to you.

[C4us]

Although OP is receiving severance pay after a layoff, I question leaving the country and reentering on the amployer's documents when the OP is not actually working for the employer. He will be terminating employment on the layoff date. The severance could be considered an employee benefit like payment for vacation time after quiting job.

I suspect it is how the termination paperwork is worded. This is a case where I believe a consultation with an immigration attorney is advised. Take all papers from employer.

[txh1b]

Legally, what C4us is saying is correct. An employee officially loses his status on the date of lay off notice as per the books. But to pay a severance check and companies are little sympathetic for H1b employees and they allow the H1b to remain active till the official last day of severance.

As per a major attorney, as USCIS goes by paychecks, the person can get a transfer done but as per the law, he/she is out of status upon termination or lay off notice but not until he/she gets the paychecks.

It would not be advisable for one to travel during this period on a H1b as a trigger at CBP for cross verification with company HR could lead to expedited removal if caught.

[jk_consultant]

txh1b, C4us and knowledgeable - thank you very much for this invaluable advice.

The risk, if I have understood it correctly is that if at the (POE) port of entry the CBP cross verifies with company HR, then I could be deported back to India.

I have already spoken to a few immigration attorneys and other immigration gurus like yours.

The conservative advice in general has been to avoid travel.
But those who seem to know ground realities have told me that these things have happened in the past and it is highly unlikely the CBP would call up HR at my company if I have all my papers right. ( Assuming here, that they would not see this change of status in their system at POE as USCIS will be notified after Jan 6th)

These rather different viewpoints is what is adding to my confusion.

I know it is probably a personal call here on what to do but from all your experience, what would you suggest?

(again, I am very appreciative of your help here - Kind Regards)

[C4us]

I cannot advise you to do what I believe to be an illegal act. The fact that you would knowingly commit it is offensive to me.

[txh1b]

I think you should be more worried about finding a job and filing for a transfer than travel at this time unless it is an issue involving life or death.

[jk_consultant]

thank you all for your generous response. (My intent behind posting this question in this forum was infact to avoid any potential illegal act due to lack of proper guidance/information)