For H-1B workers, the precise moment of termination can be ambiguous, especially when garden leave is involved. An employee who takes a "garden leave" is one in which they work remotely or don't report to work during the notice period. During the garden leave, the employee is not allowed to report to work or start any other job, although they are still paid and in the process of ending their employment.
For example, an employer might formally terminate an employee on November 1, 2022, yet continue paying them until December 1, 2022, while they remain in a nonproductive status. This period, termed "garden leave," is designed to discourage the employee from immediately joining a competitor and is part of the severance arrangement. In this scenario, does termination occur on November 1, when the formal notice is given, or on December 1, when the payments cease?
According to a June 2020 USCIS Policy Memo, termination should be considered effective on November 1, 2022. The memo states, "The failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both." This interpretation suggests that the worker is no longer maintaining their H-1B status once they are formally terminated, regardless of continued payment during garden leave.
However, the USCIS also allows for some discretion. If the worker is on leave under statutes like the Family and Medical Leave Act or the Americans with Disabilities Act, their H-1B status may not be violated, even if unpaid. The policy memo emphasizes that the officer must assess the specific circumstances and duration of nonproductive status to determine any violation.
The memo further notes, "In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status." Officers may issue a Notice of Intent to Deny (NOID) or a Notice of Intent to Revoke (NOIR) if the nonproductive period exceeds a reasonable transition time between assignments.
So, while it is safer to consider November 1, 2022, as the termination date, there could be grounds for extending the termination date to December 1, 2022, based on the circumstances and continued payment during garden leave.
Additionally, a 1999 advisory opinion by USCIS on reductions in force noted that severance packages, even if they include normal compensation and benefits for a period, do not preserve the H-1B status. Branch Chief Simmons stated, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status.”
Source: https://economictimes.indiatimes.com/nri/work/what-is-garden-leave-does-the-60-day-h-1b-visa-grace-period-apply-to-such-situations/articleshow/110145891.cms
