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Last Updated On: October 4, 2024 | Published On: February 23, 2024
Losing an H-1B employment opportunity before the agreed-upon period ends can be very stressful. Fortunately, there are protections in place so that you have a period of time to secure alternative employment should an unforeseen termination occur. The 60-day H-1B grace period can be used to find another employer, change visa status, or leave the country to avoid being “out of status.”
Because the H-1B is contingent on the visa holder’s job, losing that employment has, in the past, had severe repercussions for the person’s visa status. H-1B holders would have to either switch to a new employer or leave the country to avoid being considered out of status.
If you, like many others, are under the impression that you have a ten-day H-1B grace period after your employment termination, it is likely because of a misunderstanding of the validity period regulation:
“A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.”
The USCIS does grant up to a 10-day grace after an H-1B visa ends (and the employer doesn’t file an extension) for the individual to get their affairs in order and prepare to leave the U.S.
However, this only applies to the natural end of the visa’s validation period. If your employment is terminated before the end of that period, then these 10 days do not apply. Fortunately, you will still be protected by the new 60-day grace period.
As dictated by the terms of the H-1B visa, you have to be working and earning wages from your employer in order to maintain lawful status. If you remain employed but your employer no longer pays your wages, you will have 60 days to regain lawful status before being considered “out of status”.
You may have heard rumors about the grace period being extended from 60 to 180 days but they are not accurate. The Presidential Advisory Panel has recommended this in the past but it is not implemented currently.
If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition. Contact Us
If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.
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By law, the rule outlines a 60-day grace period for unemployment so if you are able to show that you have submitted the applications, communicated with prospective employers or have been interviewing then chances are you will get the full 60 days for the next employer to submit a petition on your behalf.
What if you don’t take any action for 59 days and then have a petition submitted on day 60? If that’s the case then USCIS might not approve your status extension part of the petition and you may need to go back home to get a new H-1B visa in your passport before you can work for a new H-1B employer.
Experience a recent layoff? The 60-day grace period means you will be considered to be under a valid status for the duration of the period. According to United States immigration law, you must be under a valid status to be able to request a change of status, extension, and other related privileges. Therefore, the grace period rule gives you the legal ground to change to another nonimmigrant status or find another H-1B employer.
However, it is worth noting that approval for the grace period is not automatic—it is subject to the discretion of the Department of Homeland Security (DHS). According to the rule, the “DHS will determine whether facts and circumstances warrant shortening or refusing the 60-day period on a case-by-case basis.” In other words, you will have to present convincing evidence to the DHS. This will be used by the adjudicating officer to approve it or shorten the 60 days or entirely refuse it.
While, in many cases, the grace period is fully granted by the DHS through the USCIS, some circumstances consistent with immigration’s long-existing policies may cause the shortening or refusal of your grace period.
For example, it’s important not to accrue any unlawful presence within the country because that does have serious ramifications. For example, if you have between 180 and 365 days accrued then you are barred from the country for three years if you leave and attempt to return. If your unlawful presence exceeds 365 days, you’re barred for 10 years.
Other grounds for grace period refusal include fraud, unauthorized employment, and criminal charges. Check out this guide on unauthorized employment and how USCIS handles it.
Check out this H-1B 2023-24 complete guide!
Unlike some other immigration waiver programs, there is no specific official form to request an H-1B grace period. One way to do this is to file a standard H-1B transfer or change of status application. You will, however, need to explain the circumstances surrounding your job loss. It is best to present any and all available supporting evidence to back your claims.
Your grace period starts immediately after your last day of employment. It is important to utilize it judiciously to avoid losing your status and having to leave the United States. The following are some of the things to do during the two months:
One way to handle a situation where you have prior knowledge that your current H-1B employer will revoke status or issue layoffs is to change employers because the USCIS will generally approve petitions if you’ve had status and the gap is 30 days or less. That essentially gives you a month to find a new employer and file the new H-1B petition.
You can see the USCIS H1B Employer Data Hub here. You can use this resource to see initial decisions (approvals/denials) made by USCIS.
If you do find another employer willing to sponsor you for your H-1B, that employer will need to go through all of the steps that the previous employer went through. A Labor Condition Application will need to be obtained and another I-129 will need to be filed. Fortunately, if you have already been counted against the cap with your initial petition, this new petition will not be entered into the lottery, meaning that you can make this transfer at any time, not just on April 1st.
If you have been working with an EAD and were laid off then you have the right to start employment with a new job immediately since a job layoff or termination doesn’t invalidate EADs.
What if the gap exceeds 30 days? Unfortunately, this may decrease the likelihood of approval. However, this isn’t always the case. Your best bet is to consult with an H-1B attorney to learn more about your options and the best course of action to take.
Check out this guide on H-1B Visa Documents
Another option available to you if you have a spouse also in the U.S. on an H-1B visa is to change to dependent status (H-4 or L-2). By doing so you have the opportunity to search for another employer to petition on your behalf.
You do, however, need to demonstrate to the USCIS that your spouse has been working on their H-1B visa, show proof that you were also maintaining your status prior to the termination and a number of other determining factors.
If your H-1B spouse has an I-140 petition pending with the USCIS for a green card, you are currently able to apply for your EAD card under H-4 status. To apply for employment authorization, you should file Form I-765, Application for Employment Authorization.
Below are some frequently asked questions our office has received regarding the H-1B grace period.
Am I Eligible to Use the Grace Period If I Resign from My H-1B Job?
You may be able to use the 60-day grace period if you resign or quit your current job as the rule does not specifically differentiate between job loss, job layoff, resignation, or termination. However, don’t forget that the purpose of the grace period is to help certain nonimmigrant workers who find themselves in dire situations. Therefore, if your case is not convincing enough, the USCIS may deny you the grace period. It is therefore not advisable to just resign from your job if there are no circumstances warranting it. We recommend that you speak to your immigration attorney about this.
Who does the 60-day grace period apply to?
It applies to non-immigrant workers on H-1B, O-1, E-3, TN, H-1B1 and L1 visas.
What is the purpose of the grace period?
It is designed as a means for nonimmigrant workers to find other means of a sponsoring employer, change status or move to a different visa.
Can My H-4 Spouse Work During the 60-Day Grace Period?
Yes, your loss of employment does not stop your spouse on H-4 status with a valid EAD from working. It is important to know that your spouse’s H-4 status is attached to your H-1B status and would come to an end at the expiration of your status.
However, the 60-day grace period rule will keep you under a valid status for the time being. This means the H-4 visa also remains valid and the holder can continue working for those 60 days. If the grace period is denied, the H-4 status also comes to an end. Any work done after the denial will be considered unauthorized employment.
Can you use the grace period more than one time for an employer?
You can only use the 60-day grace period once. Let’s use an example to illustrate the point. If you are working for Company X you are allowed one 60-days grace period for the H1B. Now, if you get laid off or decide to quit and then change your mind and want to go back to that employer after 30 days on the same H1B petition, you are not permitted another 60-day grace period. On the other hand, if you transfer to Company Y, then you have a new H1B petition and validity period so which entitles you to another 60-day grace period.
Does DHS have the right to shorten this grace period?
Yes, they have the right to do so on a case-by-case basis. It is up to their discretion if they find or suspect you have been involved in unauthorized employment or fraud. Talk with your immigration attorney if this is happening to you.
Can I Travel Outside the United States During the H-1B 60-Day Grace Period?
No, you cannot travel outside the United States during the grace period. The sole purpose of the grace period is for you to stay in the U.S. and apply for a change of status or find a new employer. If you leave the country during that period, your grace period will end. Traveling out of the U.S. without a valid visa will also undermine your ability to reenter the U.S. after the trip. Therefore, it is best to suspend international travel until you have an approved nonimmigrant visa.
When Can I Start Working With New H-1B Employer?
If you get a new H-1B job before the end of the grace period and you have filed a change of employer petition, you can start working for the new employer even before the petition is approved. However, it is ideal to wait until you have the I-797 notice of receipt as proof that the petition has been received by the USCIS.
Does it matter whether I quit or get laid off for the grace period to apply?
Technically there is no distinction in terms of who is entitled to the grace period but at the end of the day DHS has the authority to shorten the grace period since it was really designed to help non-immigrants in hardship scenarios.
What Happens If I Don’t Get a New Job At the End of the Grace Period?
Unfortunately, you will have to leave the U.S. if you are unable to find a new employer after the 60 days given to you. Even if you find a new job and the employer is going to file a petition on the 61st day of the grace period, you will still need to leave. This is because the rule only covers you for 60 days, after that, you are considered to be out of status.
However, the good news is that if you already corresponding with prospective employers, you can still get job offers while outside the United States and then travel back to resume your new job. You will only need to go through consular processing at the U.S. embassy or consulate in your country to apply for a visa. Alternatively, if your current visa stamp is still valid by the time you get a new job, you can use it to seek reentry to the U.S. However, you will need to take along the new H-1B notice of receipt as part of the documents to show at the port of entry.
If you’ve lost your visa employment, it’s always advisable to bring your case to an expert who can help you. VisaNation Law Group can help you apply for a change of status or file for an extension if you've recently been terminated or had your H-1B revoked.
Tags: H-1B Rules, H-1B Transfer
