Resigning from H1B Job

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mikem
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Joined: Sun May 20, 2007 12:42 pm

Resigning from H1B Job

Post by mikem » Thu Apr 03, 2008 3:54 pm

I'm resigning from my job in the US on an H1B and have a question that I hope someone can answer.

My employer pays out banked annual vacation time to employees when they leave. You have the option of either getting paid a lump sum and having your employment end on your last day in the office OR - you can specify a "final day in the office", then go on annual leave to use up your vacation time (while maintaining benefits, etc.).

I elected to remain on the payroll and use up my annual leave, but our HR department says they can't do that since I'm H1B -- that my final day in the office has to be my final day of employment & I will get paid out a lump sum. They are claiming this has something to do with H1B-related laws, which I think is a load of crap.

Do they have a case, or are they full of crap? Either way, I'm considering rescinding my resignation (which i am able to do), then simply going on vacation. Once my vacation is over, I'll mail them a letter of resignation from Canada. I'll make sure my supervisor knows the score, but keep HR in the dark until the last day. I want to stay on the payroll because I'll end up with a larger sum in my 401k and be able to maintain my medical benefits (since BC has a 3 month wait period, I want to make sure I have something to fall back on).

Thanks for any help.

nelsona
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Post by nelsona » Thu Apr 03, 2008 4:10 pm

A lot of firms have gotten into trouble by keeping non-working H1s on payroll, some legitimately (like this) and some not so legit (like benching etc).

You are out of status the day you are no longer fulfilling your H1 job assignments.


So it isn't a load of crap.

On the BC medical. Cdn citizens returning to canad are not subject to the waiting period. The waiting period for Cdns only applies to Cdn residents moving from one province to another (where the old province is required to cover for those 3 months anyways).

You will be covered the instant you establish a home in BC.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

mikem
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Post by mikem » Thu Apr 03, 2008 4:48 pm

Hmmm... well then I might have to rescind my resignation and mail it to them after my annual leave finishes.

As for the BC medical plan...From the MSP website:

When does Coverage Begin?

New residents or persons re-establishing residence in B.C. are eligible for coverage after completing a waiting period that normally consists of the balance of the month of arrival plus two months. For example, if an eligible person arrives during the month of July, coverage is available October 1.

http://www.health.gov.bc.ca/msp/infoben ... .html#when

This is also the same line they told me when I called. This is unconstitutional if I'm not mistaken -- I will be a Canadian citizen ineligible for medical insurance in my own country.

mikem
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Post by mikem » Thu Apr 03, 2008 4:58 pm

...it does appear the the MSP website is silent on residents returning from out of country. Might have to make a few more phone calls and see if I can find a more informed flunkie.

nelsona
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Post by nelsona » Thu Apr 03, 2008 5:26 pm

A lot of provinces take the position that they don't cover returning residents. But when push comes to shove, the canada health ACt guarantees all Cdn citizens living in canada health coverage.

The wording in the provincial health complaince reports changes over the years, but that is the bottom line.

If you don't want to have a fight on your hands (you would win), then keep your coverage going as long as you need to.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

mikem
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Post by mikem » Thu Apr 03, 2008 6:01 pm

Thanks for the info Nelson. You've been of immense help over the years.

worryfreeinvestor
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Post by worryfreeinvestor » Sun Apr 06, 2008 10:47 pm

How can it be "unconstitutional" for the province to require a two to three month wait before BC MSP coverage? There's nothing in the British North America Act that remotely mentions that!

And the Canada Health Act doesn't guarantee health care to any individual. [i]That[/i] would be unconstitutional, because the British North America Act reserves welfare to the provinces.

Canada Health Act has nothing to do with individual citizens. It establishes the criteria which a province must satisfy in order for Parliament to transfer health funds to that province - namely government-monopoly health care.

mikem
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Post by mikem » Sun Apr 06, 2008 11:25 pm

Perhaps it's not unconstitutional, but the Canada Health Act guarantees universal access to health care for all Canadian citizens. Upon further investigation, I've discovered that it does indeed allow for wait periods when moving from province to province, but I believe the province of your previous residence is obligated to extend coverage during that wait period, and your new province must accept it.

That said, I'm not moving [b]from[/b] a province. I'm returning from an extended absence in a foreign country. My American HMO is not obligated to provide any coverage in Canada, nor are any Canadian provinces obligated to accept my American insurance. I've called a number of private insurance brokers in BC and they all offer emergency medical coverage, but nothing that extends coverage to pre-existing conditions, or provides anywhere near the comprehensive coverage provided by MSP. So... that effectively leaves me, and many others, in a medical insurance no-man's land. I haven't read the Canada Health Act thoroughly enough yet to find out if it specifically addresses my situation, but it would seem that MSP should be obligated to cover me from day of my arrival.

nelsona
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Post by nelsona » Mon Apr 07, 2008 5:50 am

Who said anything about unconstitutional?

The Province ALL adhere to the canada Health Act in exchange for transfer funds. Its an agreement between the feds and the provs.

The 3-month wait is for INTER-provincial transfers, during whaich time the province od departure id OBLIGATED to maintain coverage.

Some province have tried to extend this to new immigrants (ON,NB, and now BC). All of the others however, EXPLICITLY give returning citizens day one coverage. Why? Because they HAVE TO.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

worryfreeinvestor
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Post by worryfreeinvestor » Mon Apr 07, 2008 12:22 pm

Mikem mentioned unconstitutional. Seriously veering off topic here, but in the June 2005 Chaoulli-Zeliotis judgment, the Supreme Court of Canada found that provincial health acts that conform to the Canada Health Act actually [i]violate[/i] Canadians' rights under the Charter of Rights & Freedoms because government monopoly restricts your choice to a degree that it harms you. According to one of the juudges: "Access to a waiting list is not access to health care".

But this is not a health policy or health law forum, is it? To the matter at hand: the "province" does not have to accept your U.S. insurance, what is important is that the BC doctor or hospital or lab will, and you'd have difficulty finding one that won't, I'll bet. They earn more money from a U.S. health insurer than the BC MSP! I'm covered by Anthem Blue Cross California and health care providers in Vancouver and Whistler have been more than happy to accept it when I'm up there.

Remember you have a free option when you leave your U.S. job to take up your COBRA rights for up to 61 days after leaving. So, I would take that free option, then pay COBRA premiums for one month until BC MSP kicked in.

How U.S. immigration law intersects with this I have no idea. I'll bet it's never been tested in court!

MaggieA
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Post by MaggieA » Sun Apr 20, 2008 10:28 pm

Back in the 90s an old friend, a Canadian citizen who had somewhat impulsively married an American and moved to the US a year or so before, suffered a marital breakdown and in consequence had to return home to BC. The marital breakdown was not unconnected with a flare-up in our friend's long-standing bipolar problem. So he came home in rough shape, with no money, and was hit with the no-MSP-for-three-months rule to boot. So we ended up offering him a roof over his head because he really had nowhere to go. It was a rough three months until he got back on MSP, then eventually, after a few more months, he got his health back under control, found a job and a place of his own.

We didn't know enough to consider helping him to challenge the MSP system - and of course, it wouldn't have been too easy, with the plaintiff in the grip of severe depression. I did at the time think the rule seemed harsh. Here was a middle-aged Canadian, a lifelong pretty steady taxpayer, albeit plagued with a mental health problem that was disruptive from time to time. He's out of the country a year, and thereby dis-entitled to medical care when he comes home? Doesn't seem very Canadian. I'm glad to belatedly learn that this stunt by the provinces doesn't stand up in court.

worryfreeinvestor
Posts: 144
Joined: Thu Mar 24, 2005 6:17 pm
Location: Seattle, WA

Post by worryfreeinvestor » Sun Apr 20, 2008 11:52 pm

Well, you took care of your friend by giving him a home and support for three months in the face of government indifference. That sounds pretty Canadian (and American) to me! I hope that if I were called upon in the same way I'd have the spirit to do it.

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