H1B 60 days Grace Period USCIS Rule, Lay Off, H4 EAD Validity

H1B 60 days grace period allowed on job loss. H4 EAD can work. Grace is i94 expiry day or 60 days. Join transfer employer on receipt. File H4 COS or F1 to stay.

Written by Am22tech
  By Am22tech      Updated  2 Mar, 20 #H1B work visa

228        

H1B 60 days Grace Period Meaning

You can stay in US for 60 days if you lose your H1B job. USCIS allows a grace period of up to 60 days for non-immigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status.

The H1B 60 days grace period means that you will not be considered “out of status” for almost 2 months after your unemployment. This will give you the opportunity to look for other employer or apply for a visa change of status.

When does the H1B 60 day Grace period Start?

The grace period will start immediately after the last day of employment.

How to Request H1B 60 days Grace Period?

There is no official USCIS form for requesting the H1B 60 grace period. You can file a standard H1B transfer (change of employer or change of status) during 60 day period.
If you want, you can add a cover letter with your application explaining the lay off situation. But, its not required officially by USCIS.

Can H4 EAD Spouse Work during H1B 60 day Grace Period?

H4 EAd can work during H1B grace period.
The H4-EAD is attached to valid H4 status, which in turn is dependent on valid H1B status.
In 60 day grace period, USCIS allows the H1B worker to maintain the status even if he has lost his job and running no payroll.
This means that H4 status also remains valid for those 60 days. Hence, H4-EAD remains valid and H4 EAD spouse can keep working for those 60 days as per my understanding.

Can USCIS Deny H1B 60 Grace period?

USCIS can deny or cancel the H1B 60 grace period.
The USCIS reserves the right to shorten or deny the grace period of an individual on the basis of violation of status, unauthorized employment during the grace period, fraud, or criminal convictions.

H1B Grace Period Start Date with Severance Pay

In some states like California, the state law makes it mandatory to give 60 days notice period to employee along with severance package. An employee is paid salary but is not expected to work during this period.

As per RN law group attorney Emily Neumann, they have been able to count the severance pay period as a valid legal H1B time. This means that your H1B 60 day period starts after your severance pay period has ended.

Hear yourself starting at time 49:57 in this video chat:


Open link in new window.

In this case of lay off, you will actually get 120 days (60 by state + 60 by USCIS).

60-Day Grace Period vs i94 Expiry

You get up-to 60 days or until the expiration date of the current I-94, whichever period is shorter.

You can use this grace time to file:

You can file H1B to H4 change of status application if your husband or wife is currently on H1B. The better and faster option would be go visit Mexico or Canada and get H4 visa stamping. You can then re-enter US using H4 and then immediately apply for H4 EAD.

Some people also file H1B to F1 COS too. I strongly recommend to not join Day 1 CPT program in desperation to stay in US though.

Example:

If you are fired by H1B employer and your i94 is valid for next 28 days, you only get 28 days as your grace period. Full 60 day grace will only be available if you have longer i94 expiry.

H1B Carry Over Un-Used Grace Period days?

The 60 day grace period must be used in one chance. Your un-used days cannot be carried over to another grace period.

60 Grace period single block is only available once per the H1B petition’s validity period.
Example:

If you lose your job, use the grace period, and then file H1B transfer to get a new H1b sponsored job, you are eligible for using the grace period again, if required.

NOTE:

If you resign and rejoin the same employer A after say 45 days of grace period using the same existing H1B petition (no new petition was filed since you re-joined the same employer again), and then later same employer A terminates you, while still on the same H1B approval, you don’t get another 60 days.

If an H1B extension had been filed and approved with employer A i.e. a new H1B approval validity period has started, then you are eligible for a new 60 days grace period.

H1B Transfer And Starting Work

You can start working with new H1B Transfer employer as soon as you file change of employer petition. The ideal situation would mean that you should have received the USCIS receipt number.

Usually, if you send your H1B application by Fedex and USCIS has received it on or before 60th day, you are allowed to start work.

Can I QUIT my H1B job to use 60 day grace period?

You can quit your job and then use the H1B grace period.

The official USCIS guidelines does not differentiate between a worker who is terminated and the one who resigns himself.

But, they do say H1B job Loss due to circumstances out of control of employee. Hence,  we STRONGLY advise against using grace period by planning and resigning from your job.

Travel Outside US in 60 day grace period?

The whole idea of 60 day grace period is to allow you to stay within USA after loss of employment. If you travel out of USA, the grace period ends right there.
You would need a VALID visa to re-enter USA again.

Once you leave USA anytime during 60 day period or after, your H1B transfer application, if not already approved while you were inside USA, will be approved only with consular processing. This means you will have to get the Visa stamped in your passport to re-enter USA.

H1B Transfer after 60 days grace period

You can start working with new H1B employer even if your H1B transfer was filed on 60th day and you received the receipt number on 60th day.

If the petition is going to be filed on 61st day or you will receive the receipt number on 61st day or after, you should ideally go out of USA by your 60th day and plan to re-enter USA.
After 60th day, you are automatically considered ‘OUT OF STATUS‘ if you have not yet applied for H1B.

Old Employer H1B Visa Stamp

You can use the OLD employer’s visa stamp to re-enter USA if the visa stamp is still valid anytime.
But, you should carry the NEW H1B transfer approval notice (i797 notice of approval) to be shown at USA port of entry.

On the other hand, we strongly advise to get the new visa stamped in your passport with new approved H1B to avoid issues at immigration counter.




Recent discussion on forum

  1. BG2019
    BG2019

    Anil,

    I have been doing college in the evening on h1b with I140, but recently I was laid off . I have till 25th July with my i94, can i file transfer to f1 to complete my college.

    -BG


  2. Srini
    Srini

    Thank you for the quick response Anil!


  3. Srini
    Srini

    Thanks for the great help and providing clarification Anil!


  4. RaRa
    RaRa

    Hi Anil,

    I have resigned from my old employer on May 10, 2019 and started working for the new employer the very next Monday (May 13, 2019) with the receipt number of the transfer petition. That petition went into RFE and eventually denied on August 6, 2019. We came to know about the denial on 8th so my employer refiled the transfer in premium on a same day and it is approved too but from August 9th. Please note that I also have stamped Visa from my old employer till Nov, 2021.

    Now from that day I started working till the day I got denial would be considered “Illegal stay” or “Out of status”? What are my options now? Should I go to India to get this new Visa stamped? Please advice.


  5. Anil.Gupta
    Anil.Gupta

    Yes, you can visit Canada for H1B visa stamping.


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  228 Useful Questions & Answers

  1. Naga
    Naga 31 Jan, 20 at 4:25 pm

    Hello Anil
    I was searching in google got your website,
    I need your help Suggestion & I m so confused,

    My husband applied for full time job H1B got RFE then responded to RFE got approved.
    By the time results come project canceled for some issue and they are searching for new project while applying for H1B he applied for H4 also it’s now approved got my h4 copy handy,

    Presently my husband working on contract Job his H1B approved & H4 Approval pending.

    Now my h4 ead expires in few months,

    Can I use the Full time job handy approval H4 to extend my H4 Ead or should I wait for my new H4 ?

    Thank you


  2. viswanath jagdeesh
    viswanath jagdeesh 2 May, 19 at 4:22 am

    I am out of country to get my stamping done.
    Please follow your attorney’s advice who is filing for your petition. It is safe to join your potential empoyer before 60 days. It is better to have your payroll running without any laps.

    Thanks


  3. Ravi
    Ravi 30 Apr, 19 at 4:08 pm

    Hi ,

    I resigned from employer A on Jan 25th and my I 94 is valid till Sep 2020. my H1 transfer is in process with new employer and i am working with Employer B and got RFE. If somethings goes bad and if it gets rejected, can i file another transfer since i would be getting 60 days period ?


    • Anil Gupta
      Anil Gupta 30 Apr, 19 at 6:28 pm

      60 days grace is not applicable if your case is denied by USCIS.
      Grace is only available of you lose your job and not USCIS denial.


      • Ravi
        Ravi 1 May, 19 at 8:38 am

        thank you! any suggestions..what would be the other options incase of deials?


        • Anil Gupta
          Anil Gupta 1 May, 19 at 8:47 am

          You can file for another H1B transfer in case your current transfer gets denied but you cannot stay in US.

          You should file a new transfer before your current one is denied if you want to keep staying in US.


          • Ravi
            Ravi 1 May, 19 at 9:31 am

            Thanks again.. once it gets denied and i will file a another transfer from outside of US, can i still work for the client remotely ..


            • Anil Gupta
              Anil Gupta 1 May, 19 at 9:39 am

              Once you are outside US, you are out of US immigration law scope. You work for same company or not is governed by the country you are residing in at that time.


              • Ravi
                Ravi 1 May, 19 at 11:39 am

                what if the client is not there in our country and and h1b transfer is in process


                • Anil Gupta
                  Anil Gupta 1 May, 19 at 12:56 pm

                  I am not sure if you understood my answer correctly. Please read it again.

                  It is your employer’s problem on how to pay for your work if you are not in USA.


  4. Sourabh Jain
    Sourabh Jain 26 Apr, 19 at 9:30 pm

    Thank you so much for this article. I’m on H1 with valid visa until Aug 2021 (I-140 approved and spent more than 180 days with same employer), however not stamped on either mine or my wife’s passport but we are eligible for dropbox until Aug 2019. My wife who is on H4 went to India on 7 April 2019 and while she was there I got laid-off on 23 April. My severance pay would be until 4 June. I understand that my grace period of 60 days started from 24 April. My questions are:
    – Can my wife get stamping done through dropbox if the current employer has not revoked my H1?
    – Can she enter US with that stamping if I get a job here within 60 days?
    – Do I have to have approved visa with new employer to call her in or receipt is ok?


    • Anil Gupta
      Anil Gupta 27 Apr, 19 at 7:15 am

      USCIS does not know about your job lay off until the Employer informs them and withdraws you H1B approval.

      If your H1B is withdrawn before your wife’s H4 visa stamping is completed, she may face issues.

      But, if her H4 visa is stamped, then she can travel and enter US.


      • Sourabh Jain
        Sourabh Jain 4 May, 19 at 10:36 am

        Thank you Anil. If the H4 is stamped and say previous H1 gets withdrawn afterwards, can she still enter US while my new H1 transfer is in progress? Or Does it have to be approved?


        • Anil Gupta
          Anil Gupta 4 May, 19 at 2:08 pm

          She may be asked to provide proof at port of entry about your pending H1B transfer and your H1B status.


          • Sourabh Jain
            Sourabh Jain 4 May, 19 at 2:18 pm

            So if she shows receipt notice at POE will that be sufficient?


            • Anil Gupta
              Anil Gupta 4 May, 19 at 2:33 pm

              There is a risk but that’s the only proof you have.


              • Sourabh Jain
                Sourabh Jain 4 May, 19 at 3:18 pm

                In 60 days of grace period H1 and H4 are not considered out of status so If he comes back within grace period time, it should be fine I hope


                • Anil Gupta
                  Anil Gupta 4 May, 19 at 4:43 pm

                  It should not be an issue but you never know.


                  • Sourabh Jain
                    Sourabh Jain 15 May, 19 at 6:33 pm

                    Hi Anil,

                    I have some more questions. I read an article and it says that “if you a file an H-1B transfer after you have stopped working for the current employer (i.e. you are not in status at the time of filing), then you cannot start working for the new employer based on the H-1B transfer receipt notice”

                    Can you confirm if this is true?
                    Should I mention to the new employer who is filing visa that we got laid-off?
                    If we join that employer on receipt, can we apply for another employer? If yes would they need payslip from second employer?


                    • Anil Gupta
                      Anil Gupta 15 May, 19 at 6:59 pm

                      I removed the link that you shared. I cannot comment on what other blog says.

                      The situation with 60 day grace is different and you are legally allowed to start working.

                      Your status is “period of authorized stay” in these 60 days and you are legally allowed to file and start working on H1B with this status.


                    • Sourabh Jain
                      Sourabh Jain 15 May, 19 at 7:09 pm

                      ok thanks. I also heard from someone that H1 transfer in grace period should go through consular processing (though I don’t know much about this). Is this true? Also can you explain?


                    • Anil Gupta
                      Anil Gupta 15 May, 19 at 7:25 pm

                      Your source of information is wrong.


  5. Dilton
    Dilton 24 Apr, 19 at 3:12 pm

    Hi Anil, thanks so much for your help. Much appreciated. I had a quick question. Can
    one legally stay in the US after the 60 day Grace period by transferring to a tourist visa? And then get back onto his/her H1B Visa once the employee funds a job? Most often 60 days are insufficient to find a new job after the termination of a job. Let me know what you think?


    • Anil Gupta
      Anil Gupta 24 Apr, 19 at 5:01 pm

      I strongly suggest to NOT apply for B1/B2 as it is in direct conflict with your H1B visa and its intent.
      The chances are very high that B1/B2 will be rejected unless you have a very strong reason to support it


  6. Brij
    Brij 15 Apr, 19 at 1:59 pm

    Hi Anil,

    I have a H1b Visa with company A with client A with validity sep 2020, changed to client B and filed a amendment a got a new 797 with Validity of dec 10 2018 on feb 2019, now my company has asked to stop work from Feb 25 2019, and they are processing under client B for nunc pro tunc Process, i also got a new job with another company , they are also doing h1B transfer process and i got the receipt, can i join the new employer?


    • Anil Gupta
      Anil Gupta 15 Apr, 19 at 2:57 pm

      You can join the new employer on receipt if the new employer if okay with your joining.


  7. Astitva
    Astitva 12 Apr, 19 at 9:07 am

    Hello Anil,

    First of all, thanks for the amazing work and patience in answering all the queries patiently! Kudos!

    Terminated from employment — 19th February, 2019

    Got an offer, filed for H1B transfer (Premium), received & updated on USCIS website – April 5, 2019
    Employer is suggesting to wait for approval to start employment and is silent on my concerns of being out of status by April 19th.

    Request you to advise if I would indeed be out of status if I do not JOIN the new company by April 19th or the fact that the transfer petition was received well within 60 day period will keep me in-status and legal?
    Going through your replies on this forum. it appears the former is true but just need your confirmation.


    • Anil Gupta
      Anil Gupta 12 Apr, 19 at 11:58 am

      You have to join and start payroll to come back to H1B status.
      If you can’t join on or before 60th day, you should leave USA and wait for result outside.


  8. Raghu
    Raghu 11 Apr, 19 at 12:31 am

    Hi Anil,
    You have been great in answering all the questions. Can you please advise on my situation right now?
    My employment terminated today with company A. I have an offer letter from company B and they are in the process of applying a transfer (LCA Filed). I am worried what if my company A revokes my H1B even before company B submits my transfer petition. What are my options then? Can i still transfer my H1B in the 60 day grace period?


    • Anil Gupta
      Anil Gupta 11 Apr, 19 at 8:44 am

      You are fine even if company A revokes your H1B. If you can get a USCIS receipt number and join the new employer on or before 60th day, you are good.


  9. anirudha nanda
    anirudha nanda 8 Apr, 19 at 7:58 am

    Hello Anil,

    I had a couple of quick questions for which i wanted advice:

    1: If my new employer files for a H1B transfer towards the end of my 60 day grace period and the date of the result of the H1B transfer is after 60 day grace period, in that case, am i protected under the transfer ‘cap’? ie, can i start working with the receipt of the petition?

    2: Do I need to tell the legal team of my new company about me being under 60 day grace period?

    Do let me know what you think,

    Looking forward to your reply. Really appreciate this
    Ani


    • Anil Gupta
      Anil Gupta 8 Apr, 19 at 8:37 am

      You have to tell your new company about your 60 day grace period as they need to file your H1B transfer quickly to make sure USCIS is able to receive and generate a receipt for your case on or before 60th day.

      You can start working on receipt.


  10. anirudha nanda
    anirudha nanda 31 Mar, 19 at 7:03 pm

    Hello Anil,

    I had a 2 quick questions:

    1: I am close to getting an offer from a company before my 60 days expire. However my passport has 6 months and 6 days remaining. I intend to apply for its renewal asap. Will it be safe to apply for h1b transfer while my passport is in renewal ?

    2: Once my h1b has been transferred to my new country, will i need to go out of US and get a stamping?

    Do let me know,

    Thanks,
    Ani


    • Anil Gupta
      Anil Gupta 31 Mar, 19 at 7:34 pm

      You can apply passport renewal after you have filed your H1B Transfer.

      You might be required to go out of US if USCIS approves your H1b-transfer with “consular processing”.
      Normally, USCIS approves with new i94 but if not, then you need to go out.


      • anirudha nanda
        anirudha nanda 31 Mar, 19 at 7:51 pm

        Thanks Anil!

        Also in the 60 day validity period, is my I-797 also valid?


        • Anil Gupta
          Anil Gupta 31 Mar, 19 at 7:51 pm

          I797 is only considered valid till the date mentioned on it.


  11. Mandar Lalit
    Mandar Lalit 30 Mar, 19 at 7:24 am

    Hi,
    Thank you for sharing above information.
    My friend is with Employer A for last 5+ years. However she is facing lot of political issues due to leadership team changes and she may resign simply because unprofessional work environment.
    Can she avail 60 day grace period to find new job?
    Would she have to do any paperwork for USCIS ?

    Her visa with company A is stamped and expires in July-2019.

    Thanks.


    • Anil Gupta
      Anil Gupta 30 Mar, 19 at 7:39 am

      As mentioned in above article, USCIS may refuse to give the 60 day grace period if you plan to resign and then look for job.


      • Mandar Lalit
        Mandar Lalit 30 Mar, 19 at 7:49 am

        Hi Anil,
        Thanks for quick reply.
        In above case , if she resigns , what would be next steps ?

        Thanks again!!


        • Anil Gupta
          Anil Gupta 30 Mar, 19 at 7:49 am

          Please read the article above. It has all the answers to your questions.


  12. Mandar Lalit
    Mandar Lalit 30 Mar, 19 at 7:24 am

    Hi,
    Thank you for sharing above information.
    I am with Employer A for last 7 years. However I am facing lot of political issues due to leadership team changes and I may resign simply because unprofessional work environment.
    Can I avail 60 day grace period to find new job?
    So I have to do any paperwork for USCIS ?

    My visa with company A is atamped and expires on 31-Aug-2019.

    Thanks.


  13. anirudha nanda
    anirudha nanda 27 Mar, 19 at 7:05 pm

    Hi Anil,

    What is the difference between Regular payroll and payments via severance payments.

    To give context my date of separation was March 13.

    My company’s exit agreements say that my severance payments will be paid to me via the company’s regular payroll system. The specific words are “the Employer’s established pay days via the Employer’s regular payroll system until April 10”.

    Does this mean that my 60 day grace period starts after April 10?

    Please do let me know,

    Thanks in advance.


    • Anil Gupta
      Anil Gupta 27 Mar, 19 at 7:32 pm

      As per my opinion, the official termination date should be taken as the date of start of 60 days grace period.

      There is no clear guidance from USCIS though.


      • anirudha nanda
        anirudha nanda 27 Mar, 19 at 7:32 pm

        Thanks Anil,

        Quick question:

        Does the company inform USCIS about the date of termination? Or can they inform the USCIS to set the 60 dat grace period to some other date(like the last day of being on payroll system)


        • Anil Gupta
          Anil Gupta 27 Mar, 19 at 7:49 pm

          Company does withdraw your H1B once you are terminated. So, USCIS does get the information that your are not on company’s payroll and not working.


  14. Ruma
    Ruma 26 Mar, 19 at 6:02 pm

    Hi Anil,
    I have a new job offer but new company is located in another state/city. My visa is already transferred to new company. If I resign from my current company and take a week break to move from one place to other, do I loose 60 day grace period? Meaning, in future if I loose/quit jobs, am I no more eligible for 60 grace period?
    Thank you so much, in advance, for your time. – Regards, Ruma


    • Ruma
      Ruma 26 Mar, 19 at 6:36 pm

      Do you have suggestions, best way to deal with such a transfer.


      • Anil Gupta
        Anil Gupta 26 Mar, 19 at 7:01 pm

        Move to new state by Airplane. Join the new company and then take any break if you want to.

        You will lose the 60 day grace as it can only be used once per H1B approval.


        • Ruma
          Ruma 26 Mar, 19 at 9:21 pm

          Thank you again Anil


  15. vish
    vish 26 Mar, 19 at 7:19 am

    Hi Anil,
    I was terminated from employer A on Dec 7th and Employer B applied H1 petition on Feb 4th just before the 60 days. Right now i am waiting for approval (got receipt)and haven’t joined company B and my payroll is not running. Can you tell if i am still in status since my petition was filed or should i leave the country? Thanks in advance.


    • vish
      vish 26 Mar, 19 at 7:31 am

      Dec 7th of 2018 and Feb 4th of 2019. Also i have another company C consulting who can get a immediate offer and file H1, can i join them on receipt?


      • Anil Gupta
        Anil Gupta 26 Mar, 19 at 8:19 am

        You should have joined the employer on or before 60th day using your H1B receipt number and started payroll to get back on to H1B status.
        Not sure why are you waiting for the approval in this case.

        You are “out of status” if you have not joined the employer and you should leave and wait for result outside USA.

        Any specific reason you have not joined and decided to wait for approval? How are you maintaining your H1B status currently?


        • vish
          vish 26 Mar, 19 at 8:29 am

          Thanks for your prompt response. I was told by the one of the attorneys that it is fine to stay and its legal even if my payroll is not running. Which is false. I was assuming that i am in status as i have petetion submitted.


          • Anil Gupta
            Anil Gupta 26 Mar, 19 at 8:38 am

            My suggestion for you is to leave immediately as you have already spent over a month in “out of status”.
            Second step is to upgrade your application to premium. Once transfer is approved, re-enter US.


            • vish
              vish 26 Mar, 19 at 8:39 am

              Thank you for the clarification.


              • manish
                manish 1 May, 19 at 11:39 pm

                Hi Vish, I’m in same boat. My potential employer is saying I can join after 60 day grace period as long as H1B is filed within 60 days. But reading from Anil’s response, joining is necessary within 60 days.

                Please let me know what is the right answer for this.


                • Anil Gupta
                  Anil Gupta 2 May, 19 at 6:54 am

                  The rule says that you should be back to H1B status by 60th day by starting your payroll.
                  If your Employer attorney is fine with you joining even after 60th day, it is your decision.


            • vish
              vish 27 Mar, 19 at 8:20 pm

              Hi Anil,
              please check this below pdf link page # 32 & 33 section (G).

              https://www.nafsa.org/uploadedFiles/uscis_consolidated_guidance.pdf?n=3976

              Please share your thoughts.


              • Anil Gupta
                Anil Gupta 27 Mar, 19 at 8:38 pm

                Not sure how it fits in your situation.

                If you want to take the risk of staying back in US, you can do so if your attorney is fine with it.


  16. kissofdeath001
    kissofdeath001 22 Mar, 19 at 9:40 pm

    Hi, Anil, I got laid off from company A on Mar 10th, 2019. Per the California WARN act, they sent me a notice of termination on Mar 11th, 2019 clearly stating two things
    1) I will be on payroll with full pay/benefits but will be expected to do no work for them (all access gone) .
    2) the last day of employment – frequently referred to as the termination day in the document I got, will be 60 days from the “notice of termination” (=separation) day; at which point I could sign their termination agreement and collect any severance.

    I have read your FAQs – especially the last one but I am not clear if the grace period has already started for me or if it will start when I get officially terminated.
    (i.e. do I have just 60 days OR 60 notice period + 60 grace days = 120 days)

    Also, Note that
    a) I have an option to just join the company A again in some other group (should I be able to find such a group willing to take me – which company A will then consider as an internal transfer)
    b) They will send a notice of H1B revocation to USCIS 2-4 weeks after the aforementioned 60 days of notice period.
    Both these points seem to suggest that I am not really terminated until 60 days from layoff day. But then, “you are not expected to work during this period” verbiage is throwing me off. Appreciate your take on it


    • Anil Gupta
      Anil Gupta 22 Mar, 19 at 10:00 pm

      It seems that your payroll will run for 60 days? Or it is just the severance pay for those 60 days?

      As per my understanding, you just have these 60 days to find a new employer and not 60+60 = 120 days if the payroll will not run as usual.

      Normally, the payroll should keep running to prove valid H1B status. If in your case, the payroll keeps running, then you are probably good for next 120 days.
      I would suggest to take an opinion from a California based attorney too as they would know state laws better.


      • kissofdeath001
        kissofdeath001 22 Mar, 19 at 10:31 pm

        > It seems that your payroll will run for 60 days? Or it is just the severance pay for those 60 days?

        Yes, the payroll will keep running for 60 days. The severance comes after that as a lump sum (though whatever they calculate as my severance, per our severance plan, they will deduct the pay they gave me during the 60 days WARN period). Also, the severance is paid only if I sign the termination agreement while pay from payroll for above 60 days is paid nonetheless.

        Thank you for your insights. Yes, I will also talk to a CA based lawyer to see if there are some quirks..


  17. anuka
    anuka 19 Mar, 19 at 11:37 am

    Hi Anil, I got laid off from company A on Feb 15th,2019 and in 60 day grace period right now. Because premium is open, I wish to know what will be the risk of filing my petition in premium. Once my transfer got filed in premium this week, I will still have 3 more weeks of grace period left. In case, if I receive a denial will I still be staying within my grace period or do I need to travel out of country and initiate another transfer through consular processing?


    • Anil Gupta
      Anil Gupta 19 Mar, 19 at 12:00 pm

      I think you can still use the 60 day grace period to file another H1B transfer and join other company if first one gets denial.


  18. vamsi krishna
    vamsi krishna 19 Mar, 19 at 6:58 am

    Hi Anil, My H1B went for extension(in July 2018) and got RFE in Nov 2018, before Company A H1b withdraw(was on Feb 28, 2019) Company B initiated H1b(Feb 15 2019). my I-94 expired in Sep 2018. now I have new receipt number with me. Am I eligible to stay in USA?
    Payroll ended by Jan 31 2019, by when should my payroll begin?


    • Anil Gupta
      Anil Gupta 19 Mar, 19 at 8:13 am

      Have you joined Company B already or not? What is your current status in USA? You have not clearly mentioned it.


      • vamsi krishna
        vamsi krishna 19 Mar, 19 at 9:13 am

        I’ve not joined the new company yet. Waiting for joining date yet!
        Planning to run the payroll thru consultancy for now but don’t know when to start payroll


        • Anil Gupta
          Anil Gupta 19 Mar, 19 at 12:00 pm

          I do not know how you are staying in US after your company A has already withdrawn your H1B.
          Are you using the 60 day grace period here?

          Why did company A withdraw your H1B? Was it termination from employment?

          If you are staying in US using 60 day grace rule, then your payroll should start on or before 60th day.


          • vamsi krishna
            vamsi krishna 20 Mar, 19 at 12:27 pm

            Yes, company A terminated me because they couldn’t provide client letter for RFE. I am using 60 days grace period
            So now I understood that my payroll should run before 60th day
            Thanks for clarifying my doubt


  19. Ankit Mohapatra
    Ankit Mohapatra 15 Mar, 19 at 4:44 pm

    Hi Anil, My I-94 expired on November 5 (visa expired on October 27), and my h1B is being processed since October 22. My company shut down today, and laid off all employees. Do I also get a grace period of 60 days? what about the 180 days rule (unlawful presence)?


    • Anil Gupta
      Anil Gupta 15 Mar, 19 at 8:09 pm

      You do NOT get 60 days grace as your i94 has already expired. You are immediately in “Unlawful presence” after your lay off at this time.
      You should leave US and apply for H1B transfer from outside USA to avoid penalties.


      • Ankit Mohapatra
        Ankit Mohapatra 15 Mar, 19 at 10:39 pm

        One question, when does the unlawful presence start to accrue? From October 27 (visa expiry) or November 5 (i-94 expiry) or March 15 (day I was laid off)? Thanks 🙂


        • Anil Gupta
          Anil Gupta 16 Mar, 19 at 4:49 am

          March 15 – the day you were laid off as you neither have valid i94 nor an approved H1B to stay legally in US.


  20. Burim
    Burim 13 Mar, 19 at 4:38 pm

    Hi Anil – My friend’s I94 was expired on 31st dec 2018. But she has already joined another company on receipt notice on 22nd oct 2018 . She got an rfe and company replied to rfe on 19th feb but could not get client letter as requested by USCIS. Then Position got closed on 22nd feb and she was on bench till now . As per her company going in premium is not safe as it will be denied and they are asking her to leave the country as her I94 has expired on 31st dec 2018. Can you suggest that in this scenario whether she can still avail 60 days grace period and what are her best option


    • Anil Gupta
      Anil Gupta 13 Mar, 19 at 8:40 pm

      H1B 60 day grace period is only available if the company terminates the employment.
      Is the company terminating your friend job?


      • Burim
        Burim 13 Mar, 19 at 11:43 pm

        No, they are not terminating as her green card is in process. Her perm (labor)is already approved. I140 is left. This is what her company said to her. But she is doubtful whether they are just pretending to be good , so she leaves this country and then they will revoke her H1B . As per that company contract they were suppose to keep her on bench for 2 weeks which they did as promised but she is getting many good jobs in US but she need some time to get till the interview and then if cracked all background process till joining.

        And company is not ready to pay for onbench till that time. So in this scenario where her previous I94 expired and her current RFE result is not out, if she is terminated by the company , can she avail this 60 days grace period? And how long will it take to revoke H1B if company decided and in meanwhile if she gets a job , can she ask the same company to take her as they are concerned for their money?


        • Anil Gupta
          Anil Gupta 14 Mar, 19 at 8:18 am

          No, she would not be able to use H1B 60 day grace period if her i94 has already expired.


        • Burim
          Burim 25 Mar, 19 at 7:22 am

          Thanks Anil for a quick reply. One more quick question if her company is not revoking her H1b and has asked her to leave on 27th March and payroll in US is generated till 27th March but if she leaves on 29th March from US .. will there be any issues when she return’s back or even while leaving from this country .. will she be considered out of status as 2 days payslip is not there and her I94 was expired on 31st dec 2018 ad her current extension decision has not yet come .


          • Anil Gupta
            Anil Gupta 25 Mar, 19 at 10:09 am

            The two days are technically counted as ‘Out of status’. On the other hand, some time to leave US is fine. I do not see any issue.


            • Burim
              Burim 25 Mar, 19 at 11:10 am

              Thanks Anil for prompt response, so will she have issues for this 2 days as pay slip is not generated and technically as you said she is considered out of status ?


              • Anil Gupta
                Anil Gupta 25 Mar, 19 at 11:26 am

                Yes, she will have to mention these 2 days as ‘Overstay’ time in US in all future applications and explain the reason.
                I answered a similar question on what to write in DS-160 if you had even a single day of ‘overstay’.


                • Burim
                  Burim 25 Mar, 19 at 12:23 pm

                  Thanks Anil but her H1B has not yet denied nor her company is revoking her H1B. It’s just they don’t want to pay for her salary , so will this 2 days without payslip but still in 240 days period be considered as overstay as your statement for overstay defines as “Unlawful presence starts on H1B denial”


                  • Anil Gupta
                    Anil Gupta 25 Mar, 19 at 12:37 pm

                    If you do not get paid in US while you are on H1B, you are considered “Out of Status”. That is why it is a ‘Similar’ case and not same case.

                    Since, her i94 has already expired and the employer is taking her off payrolls, she will be treated as “Unlawfully present” in US.
                    My suggestion is to leave US on the same day as the employer is stopping payroll.

                    Stopping payroll is same as termination.


                    • Burim
                      Burim 25 Mar, 19 at 12:38 pm

                      Thx Anil for clarification. Will suggest her to leave this country on the same day as her payroll is stopped


      • Burim
        Burim 13 Mar, 19 at 11:43 pm

        Also, can a employee stay in US on leave without pay for a month (like in this scenario). ?As she requested for leave without pay but her company denied stating it’s not legal as per USCIS rules


        • Anil Gupta
          Anil Gupta 14 Mar, 19 at 8:18 am

          You cannot stay in US on H1B visa without taking pay or leave without pay. It is a violation of H1B visa and you will lose your status.
          Your employer is absolutely correct.


  21. tejashri
    tejashri 13 Mar, 19 at 2:18 pm

    Hi Anil,
    I recently got laid off from company and I am within my 60 days grace period. I am actively looking for employer who can transfer my h1 visa but now I have only 15 days left from 60 days so we are filing for change of status from h1b to h4.
    I have few questions regarding that. It will be great if you can help me on this.

    1.If I file h4 within 60 days grace period and found another employer who can transfer my H1B , can I join them after approval or before approval(On receipt)?
    2. I know cos is taking 10-12 months to process now a days in vermont center. Do I have to wait for h4 approval to apply for h1b again (after 60days period)?
    3..If I file h4 within 60 days grace period and found another employer who can transfer my h1b and If I have to join them after approval do I need to go for consular processing?
    4. In order to apply for h1b while my cos is pending do I have send withdraw letter to USCIS before or after applying for H1B.
    If we send it before applying for H1B , and H1B get RFE or Denial then am I consider out of status for that period?

    Thanks.


    • Anil Gupta
      Anil Gupta 13 Mar, 19 at 8:33 pm

      You cannot join new employer if you file H1B after 60th day until the H1B is finally approved. The H1B will most probably be approved with “Consular processing”.
      The status from H4 to H1B or vice versa depends on what gets approved first.

      You will apply both H1B and H4 in parallel. Do not withdraw H4 COS until you have some valid status to maintain in US.


  22. Srinivasan ganesan
    Srinivasan ganesan 11 Mar, 19 at 5:40 pm

    Hello Anil,
    Recently my H1-B extension got approved with Company A and about receiving my documents (hard copies). My I-94 got expired (in Oct 2018).
    I got another offer from Company B and I am ready to (take the risk) work with company B on transfer receipt (since the premium processing is not resumed for transfers).

    But I couldn’t make the decision as below questions are running in my mind.

    1. If Company B transfer gets denied, will I fall under out of status immediately?
    2. Do we have 60 days grace period in these kind of situation?
    3. Within how many days I need to leave the U.S?


  23. Meg
    Meg 7 Mar, 19 at 4:00 pm

    Hello Anil,

    My employment with company A ended on Dec 21st 2018, but I have the pay slip until Dec 30th, during my grace period have found the job with company B and applied for H1B transfer on Feb 12th(USISC received the packet, have Fedex tracking) to Vermont center but I received the Receipt notice dated Feb28th 2019 from California Center.Even though the transfer petition is filled within the 60 grace period the receipt date is after 60 days.AM I out of status.Please provide your inputs.


    • Anil Gupta
      Anil Gupta 7 Mar, 19 at 7:17 pm

      Were you laid off or you resigned from your job or what exactly happened?

      USCIS decision will be final in your case and we have seen cases where USCIS simply said that they received the application on the date they have generated the Receipt number.

      Generally, Fedex delivery is considered valid but off late, we have seen that USCIS simply denies the delivery.

      Talk to your attorney to know the risks. As per my opinion, you should leave US and wait for transfer result outside USA.
      USCIS will count your time after 61st day to the USCIS receipt date as the ‘out of status’ time.


      • Meg
        Meg 7 Mar, 19 at 9:31 pm

        I had filed one more petition with another employer which i did not take. I have receipt number for that which says Feb 7th. Does that help to say that i had filed an application before 60 day grace period in case they don’t accept Fedex tracking.


        • Anil Gupta
          Anil Gupta 7 Mar, 19 at 10:08 pm

          Sorry, I can’t answer unless you answer the follow up question that I asked.
          It is important for me to understand your situation to give a reliable answer.


          • Meg
            Meg 7 Mar, 19 at 10:18 pm

            I was laid off as part of mass lay off by my client. Got 1 week notice. I had multiple offers within 30 days. I took one and Employer A applied H1 Petition on Feb 7th and got receipt with same date. But Client delayed my joining so i took other offer which was filed on Feb 12th with VT center but somehow got transferred to California center and got Receipt Date of 28th which is beyond 60 days. Totally confused.


            • Anil Gupta
              Anil Gupta 8 Mar, 19 at 8:31 am

              As per my opinion, you should have started working with some employer by your 60th day to get on to valid H1B status.
              If you have not, you should leave USA to avoid ‘out of status’ time.

              Check with your employer’s attorney if they are okay to let you join now.


  24. rng ssh
    rng ssh 1 Mar, 19 at 12:16 pm

    Hi Anil,

    My employment with company A terminated in December, 2018. I applied for COS from H1B to H4 (along with H4 EAD concurrently) before the 60 day grace period and it is currently pending. Now, I have received an offer from company B. My 60 day grace period ended 3 weeks back. Can the new company still apply for change of employer (COE) H1b transfer as my H4 has not yet been approved? What are the options to apply for H1B status to start working for company B without much delay? Thank you for your time and help.


    • Anil Gupta
      Anil Gupta 1 Mar, 19 at 6:12 pm

      I do not think that you can join the new employer until the H1B transfer is approved.

      Even if your H1B is approved, it will be approved with Consular processing.


  25. Hems
    Hems 27 Feb, 19 at 10:35 pm

    Appreciate your quick response Anil! Thanks a lot!


    • Anil Gupta
      Anil Gupta 27 Feb, 19 at 10:35 pm

      You are welcome.
      Do share the website with your friends if you think it is useful for getting fast and reliable answers.


  26. Hems
    Hems 27 Feb, 19 at 9:33 pm

    Hi anil,

    I was laid-off on my H1b with my official termination date as 28th of Feb. Now I have 60 days to find alternative employment.

    I already have an offer and they plan to file my H1b transfer within this 60 days and want me to join once USCIS receives the package.
    According to all forums and USCIS website, to even obtain a Receipt notice, it is taking longer than 60 days let alone an approval/RFE etc.
    In this scenario, if I start working on March 11th for example( on USCIS receiving my package for transfer) will I still fall out of status on the 60th day if I still have not received my Receipt notice or approval or RFE etc?


    • Anil Gupta
      Anil Gupta 27 Feb, 19 at 9:48 pm

      Not sure which forums have you read but USCIS receipt notice is NOT taking 60 days to arrive. You can expect your receipt number within 4-10 days and the official notice by mail within 7-21 days.

      You will NOT fall out of status if you start working with new employer. You should be okay. Your employer will also not start your employment until they know that they are doing the right thing legally.


      • Hems
        Hems 27 Feb, 19 at 10:19 pm

        Thanks a lot Anil for the clarification. I was concerned on the lingo ” 60 days to get on a valid visa status” which I thought meant a valid approved H1B or H4 Or L1. But if I receive the rwceipt notice within 4-10 or 7-21 days , it is ok to continue working past the 60 days on just that? I will not be considered out of status correct?

        Thanks!!


        • Anil Gupta
          Anil Gupta 27 Feb, 19 at 10:19 pm

          You are fine as long as you can file the application with USCIS. That’s the legal way.
          No need to worry.

          You will not be ‘out of status’ if you join on or before your 60th day of H1B grace period.


  27. Priya
    Priya 26 Feb, 19 at 5:56 pm

    Hi Anil,

    I was laid off from my job (direct-hire) 2nd week of july last year while on H1-B (first term). I secured a job (direct-hire) with another company on spetember first week of 2018. Due to the labor day weekend and some administrative delays. They filed for my LCA after 2 days of 60 day grace period. The company’s attorney asked me to depart the US and wait for the approval, get the visa stamped and then enter the US. After that, I took exactly 9 days to settle few things before departing the country. I have been waiting in India since September 20th. I just got my H1-B approval notice yesterday. I am in the process of filling out my DS 160. I have been stressing about these 2 questions-

    1. In the present employer section I have chosen “not emloyed”. What should I write in the reason column? Should I explain about my layoffs?
    2. In the question where they ask about “have you violated any US rules” should I say NO or YES for my 9 day stay beyond the 60 day grace period?

    I did my Masters in the US.
    Kindly, provide your answers. Thanks in advance. Thanks for answering everyone’s questions patiently.

    Priya


    • Anil Gupta
      Anil Gupta 26 Feb, 19 at 10:32 pm

      You can write the true reason. layoffs are not considered bad in USA as they think in India. Layoffs are common and part of life in USA. So, do not worry about writing the truth.

      As per my opinion, you can write “No” for “have you violated any US rules” or ask your attorney for suggestion.
      You should have ideally departed by 60th day if you knew that LCA has not been filed by 55th day.

      Anyways, what has happened has happened and you did the right thing. 9 days are okay and it should not cause any issue.


      • Priya
        Priya 27 Feb, 19 at 8:52 am

        Thanks Anil.


  28. venkatesh rayeni
    venkatesh rayeni 26 Feb, 19 at 4:16 am

    Hi Anil,

    I got H1b approved but I didn’t get chance to travel to USA and validity got expired by now. Is it possible to transfer my H1b to other employer and travel to USA?


    • Anil Gupta
      Anil Gupta 26 Feb, 19 at 9:36 am

      You can apply for H1B transfer.


      • venkatesh rayeni
        venkatesh rayeni 26 Feb, 19 at 9:36 am

        But I heard that the rule has been changed and below is the update. Is this true?

        As per recent development, in order to be eligible for H-1B CAP exempt, USCIS is looking to see that the person has not just been approved for H-1B status in the past 6 years but actually utilized that CAP number (i.e. obtained a visa and entered the US), otherwise USCIS considers this person to be again subject to the CAP filing.


        • Anil Gupta
          Anil Gupta 26 Feb, 19 at 9:53 am

          The rule has not changed but you may receive an RFE or may get an approval without any issue.
          It depends on your luck.


  29. Ad
    Ad 23 Feb, 19 at 3:27 am

    I went out of status for sometime due to an error in H1 B approval notice by USCIS . USCIS amended it. The attorneys advised me to go abroad and do consular processing to activate my H1 B until which the company terminated me temporarily saying that they will rehire me once I re-enter US in valid H1 status. I got my H1stamp successfully. Now when I re-entered the US , they are saying the role no longer exists and they cannot hire me back.
    What are my options at this point.


    • Anil Gupta
      Anil Gupta 23 Feb, 19 at 6:19 am

      If you can’t maintain H1B status and your employer cannot run your payroll, you should leave US.
      Or file H1B Transfer as soon as possible before your Employer terminates your employment.


  30. siri
    siri 22 Feb, 19 at 4:28 pm

    Hi Anil, I read the detailed discussion of 60 day grace period, but i couldn’t find answers for my unique situation.
    > I have H1b approved till april,2021, I-140 approved 5 years ago and I was terminated on 10/15/18 by company A
    >. i applied for H4 COS on Nov 12th with my spouse’s H1.
    >.I got an offer from B and they applied my H1B transfer and it reached USCIS on 12/12/18
    >. But the employer B is not started my pay-roll, they are saying the role they offered me has got some issue and they are looking for a new client.
    could you please answer these?
    1. being both H4 and H1B transfer are pending with USCIS, what is my current status?
    2. If H4 approves first, do I need to apply for H4-H1 COS again,to start working? or is it okay if the current H1B gets approved?
    3. If they dont take me to payroll even after H1B gets approved, is it illegal? what should I do?
    4. Now another offer company C is on my way, if I accept it , which status should I provide them?

    Thanks in advance!


    • Anil Gupta
      Anil Gupta 22 Feb, 19 at 4:57 pm

      Your current status is ‘Periof of authorized stay’ as your H4 and H1B is pending with USCIS.

      If H4 approves first, your status will change to H4.
      How has your H1B application been filed? H1B extension of status or H1B change of status? Check with your employer and form I-129.

      If your employer does not take you on payroll, you cannot get a legal H1B status.

      You have to provide them status ‘Period of Authorized Stay’.


      • siri
        siri 22 Feb, 19 at 5:11 pm

        Thank you so much for the swift reply.
        They applied before my 60 day grace period, so I did not provide my H4 receipt to them, so it is not change of status .
        do I need to apply for change of status also in this case? I mean before H4 gets approved also.


        • Anil Gupta
          Anil Gupta 22 Feb, 19 at 5:42 pm

          You are fine with your current H1B application.
          But, there will be status issues later as any of your pending application can get approved.


          • siri
            siri 4 Mar, 19 at 3:37 pm

            Hi Anil,
            my H4 got approved last friday, my H1B filed by company B still in process and got query on that, Now company C is also ready to file my H1B , I haven’t told them that my H4 got approved. not sure what to do now.
            1. is it possible to join company C, with H1B receipt (they are planning to file next week) or should I wait for its approval?
            2. Is there any big difference between H1B transfer and H1B change of status from H4?
            3. I’m planning to withdraw current H1B from company B, since USCIS needed additional info , will it be a problem in future?

            truly Appreciate your time and patience.


            • Anil Gupta
              Anil Gupta 4 Mar, 19 at 3:46 pm

              Since your status is now H4, you cannot start working for H1B employer based on receipt. You should wait for H1B approval to start working.

              H1b transfer is filed when you are currently on H1B status. You are now on H4 and hence, a H1B change of status application needs to be filed.

              There is no problem if you withdraw your employer B H1B application.


              • siri
                siri 4 Mar, 19 at 4:08 pm

                Thank you so much for quick response. one more question , I think I am still cap exempted ,how long will it take to approve H1B in current scenario? does premium processing opened, some people saying its not opened for everyone.


  31. siri
    siri 22 Feb, 19 at 4:13 pm

    hi i found that this site is very useful. thanks in advance.


    • Anil Gupta
      Anil Gupta 22 Feb, 19 at 4:42 pm

      You are welcome. Do share it with your friends.


  32. Manik Dhar
    Manik Dhar 21 Feb, 19 at 11:28 pm

    Hi Anil, I read few excellent responses from you, could you please clarify on below situation-

    I am currently having valid i-94 and valid H1B visa stamp on passport until May 2021 for employer A petition.

    I am planning to switch to employer B by 1st filing H1B transfer with B and then serving notice period of 10 days with employer A and then joining employer B based on receipt notice received between notice period to employer A.

    What happens after i join employer B on receipt notice and then this transfer with employer B is denied. Will I have to travel outside US after 1st transfer denial? Have I used my grace period here? Would like to highlight that I would have received transfer receipt before revoking employer A i797.

    Say employer B refiles 2nd attempt in 30 days of 1st transfer denial, does that mean now I have used grace period for 30 days which is within 60 days?

    I am trying to understand what happens after 1st attempt of H1B transfer is denied and whether I am eligible to refile 2nd attempt (within 60 days) and continue to stay in US legally?

    Appreciate your help on this


    • Anil Gupta
      Anil Gupta 22 Feb, 19 at 1:07 pm

      I have covered H1B transfer approval and denial scenarios here.

      H1 60 day grace period does not come into picture if USCIS denies your H1B transfer application.
      60 day grace is only for cases where you lose your H1B job and not for H1B petition denial.


      • Manik Dhar
        Manik Dhar 22 Feb, 19 at 3:58 pm

        Thank you so much for clarifying almost all situations. So after H1B denial, my authorized stay ends but as i94 is valid I can refile H1B again with same employer and continue to work on receipt again and it will not accrue illegal stay?


        • Anil Gupta
          Anil Gupta 22 Feb, 19 at 4:42 pm

          Once an H1B transfer is denied, you cannot keep working for same employer until a new H1B is approved.
          In the case of denial, you have to either go back to your old employer if they have not withdrawn your earlier approved H1B or leave US.

          You can file new H1B application but should wait for its approval before you can start working.


  33. Hari S
    Hari S 21 Feb, 19 at 6:09 pm

    Hi Anil,
    Im on h1b and laid off this week and started looking for jobs.
    1st question: My recent i94 doesn’t have any end date on it . It has – “Admit Until Date : D/S”. Does it mean the only clock thats running here is the 60 day grace period starting last working day?
    2nd question – Although my h1b is approved(thru “change of status”) I haven’t yet been to my home country and got my passport stamped with h1b. Does not having a h1b stamp on passport a hurdle for h1b transfer ?
    3rd question – How later a company can apply for a h1-b transfer for an employee after he/she got laid off from previous company? I see from comments that if the person wants to stay in usa he/she should have received the transfer receipt within 60 days. Say if the person could not find a job within 60 days and has to go back to his/her home country can he/she still use the same h1b to come back to usa to work for a different employer may be after few more months ?
    4rth question: What’s the role of LCA in a h1-b transfer ? When I find a new employer should the employer first file an LCA and wait for sometime and then apply for h1-b transfer ? Is the receipt that you have mentioned here refer to H1-b transfer receipt or LCA receipt ? How long does it take for this LCA thing?

    Thanks a lot,
    Hari


    • Anil Gupta
      Anil Gupta 21 Feb, 19 at 9:34 pm

      1. The most recent i94 should be from your H1B approval. Look at the H1B i797 approval and you will see a paper i94 attached to it. The i94 you are talking about it your F1 visa i94 which is not valid now.

      Your 60 day grace period is earlier of 60 days or i94 date.

      2. H1B visa stamp has nothing to do with H1B transfer’s approval.

      3. If you have to go out of USA, then, you can find an H1B sponsor and file H1B transfer from outside USA as well.

      4. LCA has to be filed before each H1B application including H1B transfer. LCA approval usually takes about 14 days.


      • Hari S
        Hari S 21 Feb, 19 at 10:33 pm

        Thanks for getting back Anil. I did not know h1b approval comes with a new i94. Is there any way to get hold onto a copy of my i94? I pinged my HR but it could be a couple of days before she replies and Im concerned if that i94 has an earlier expiry date and I am already out of status.
        Also you said I can go out of USA and apply for h1b transfer if I find a US employer. Is there a deadline before when I should find a sponsor and file h1b transfer ? Is it the end date on my h1-b i797 ?
        Is h1-b transfer more safe if moving to a new employer within same state compared to moving to an employer in a different state?

        Thanks a lot for your responses.


        • Anil Gupta
          Anil Gupta 22 Feb, 19 at 8:57 am

          Every H1B approval comes with a new i797 form and it either has a new i94 or not.
          If it does not have a new i94 attached to it, then you need to leave US and get a new i94 explicitly by re-entering USA.

          There is no deadline to file H1B transfer if you are outside USA. You can file it anytime.
          The timeline varies if you want to file H1B transfer while you are in USA. I suggest to file before your i94 expires to keep your case straight and clean.

          Moving to same state or different state does not affect H1B Transfer approval chances. Your employer’s paperwork makes all the difference.


          • Hari S
            Hari S 22 Feb, 19 at 11:06 am

            Thanks Anil, I received my a soft copy of my h1b i797 from my employer today and there is a i94 attached to its bottom and its expiry date is not anytime soon so I am good on that. Now I am relieved. Although, my employer only shared a soft copy of these docs and he still retains all the originals. Im wondering if I ever need these original i797A & i94 or just the soft copy is sufficient for all my purposes ? And does the LCA filed by my previous employer has any significance moving forward with a new employer and h1-b transfer ?
            Also im wondering what all immigration docs I need to get from my previous employer so that I don’t have any problem going forward.


            • Anil Gupta
              Anil Gupta 22 Feb, 19 at 1:07 pm

              LCA from previous employer does not make any difference to your H1B transfer.
              I suggest to keep copies of all H1B approvals (i797) for future documentations.

              Normally, employer do give you the original versions of i797. Not sure why your employer is not giving it. They may have a difference policy.


              • Hari S
                Hari S 22 Feb, 19 at 1:24 pm

                Thanks for your responses Anil.


  34. DA
    DA 21 Feb, 19 at 10:55 pm

    Hi Anil
    If USCIS made an error in i797 approval as COS instead of consular processing and the employee was rendered as “out of status ” to work during the period the correction was being made. After the correction was done , the employee was asked to travel abroad at a US consulate to activate their H1B status and return back to US for work. Now the person has successfully got a visa stamp abroad and unfortunately a reorg has happened resulting in layoff before he travels back to US. Can he re-enter US on the valid H1B stamp since 60 days grace period is still there to find a new employer?


    • Anil Gupta
      Anil Gupta 22 Feb, 19 at 9:20 am

      The H1B 60 day period is only applicable if you are inside USA at the time of lay off.
      If you are outside USA, the 60 day grace does not apply at all. You need a valid H1B visa stamp to enter USA and should start working on H1B from day 1 of entering USA.
      You should stay outside USA if you do not have a valid H1B job at this time and search for H1B job and enter once you have a valid job and H1B approval.

      Your entry at US airport can also be denied if you do not have a valid H1B job at this time.


  35. Vishal Oza
    Vishal Oza 17 Feb, 19 at 5:15 pm

    Hi Anil,
    Please explain whether I was Out of Status.I got laid off from my previous employer due to insufficient work on 26th October 2017.However they offered me severance pay for 12 weeks hence I was paid until Jan 26th 2018.Now if we consider 60 days grace period from October 26th 2017, I got the job offer on 10 December 2017 and H1extension was applied on 19th December 2017,however the company asked me to join after the approval and not on receipt notice.I got the approval on Feb 20th 2018 and I joined the company on Feb 26th 2018.Now am I considered Out of Status coz the petition was already sent to USCIS within 60 days however the Date of joining was delayed.FYI, I do have the delayed Date of joining from the employer.Kindly let me know at the earliest am I considered to be out of status if yes then for how many monthd.Thanking in advance.


    • Anil Gupta
      Anil Gupta 18 Feb, 19 at 9:01 am

      Did you discuss this scenario with your new employer’s attorney? What is their response?


  36. umesh singh
    umesh singh 16 Feb, 19 at 10:09 pm

    Hi Anil,

    I am in a unique situation where I think you can help me out:
    I am in 60 days grace period and 4th of march will be the 60th day.

    – Last week I received two job offer :
    – Company A last Wednesday 02/13/2019
    – Started the H1-B transfer and do not need LCA as the previous candidate backed out and I can use the same as per lawyer.
    – They sending my H1-B transfer on Wednesday 02/20/2019

    – Company B offered on Friday 02/15/2019, it delayed over a week since they had to create a new position for me.
    – No progress on H1-B transfer, will start talking with attorney on Monday 02/19/2019.

    –I absolutely love Job offer from Company B for various reasons, mostly the technology and big established company.
    – even though company A want me so badly I really do not like the market space they are in, it’s so competitive and company is losing money.

    I been burned twice last year, laid off and then terminated by another(company went bankrupt), and can not take this stress anymore and very skeptical to join company A.

    — Therefore, I need your help, how can I join company B caveat bein I have exact 14 days remaining to transfer H1-B, do I have to go to consular processing.

    – Also my family is with me, My wife is on H4, what will happen after 60 days to her status.
    – My son goes to school in US and I do not want create any discontinuity in his education if I had to travel to India,

    – What are ways, my wife can stay here without going to “out of status” if i decide to work with company B with H1-B transfer.

    -Your advice will be extremely helpful to make the right decision.
    -Happy to provide more details if I missed anything.

    Thanks,
    Umesh


    • Anil Gupta
      Anil Gupta 17 Feb, 19 at 10:43 am

      ## Join Company B or Company A?
      You can join the company B if they can file the H1B transfer before 4th March 2019 and USCIS receives it on or before 4th March.

      If Company B is not able to file H1B transfer by 4th march by any chance, you can join Company A (if their H1B transfer is indeed received by USCIS) and start working to maintain your H1B status and continue beyond 60 day grace period.

      Once your Company B files H1B transfer after 4th March, you can either join them on receipt or join after approval. Your choice.

      ## H4 Status is tied to H1B status
      H4 status is tied to primary H1B status. If you lose H1 status, your H4 loses status automatically.
      If you lose your H1B status, all of you including H4 should LEAVE the US immediately to avoid adding any ‘Unlawful presence‘ to your name.

      It does not matter if your son is going to school or not. I understand the concern and have sympathy with such cases but US immigration law will not understand the school or any other issue.

      ## H4 cannot stay in US if H1B status is NOT maintained
      H4 dependents cannot legally stay in US if you go out of US or are NOT maintaining H1B status after 60 days of H1B grace period expiry.


      • umesh singh
        umesh singh 17 Feb, 19 at 2:29 pm

        Hello Anil,

        Thanks for your advice, I have follow up questions:

        – Can a person have more than 1 H1-B approved at the same time, how does this work? does this mean I am eligible to work for both employers?
        – If I travel to India to get the VISA stamped, how does consulate know which employer I am working?

        – If company B happen to apply for H1-B transfer after 4th March, do I have to travel to India for consular processing, in below cases:
        — Company A already send application before 4th March
        — I reject offer from company A and they do not file my h1-B.
        — For my wife, can I get a B1or B2 visa until I get my h1-B approved through company B? (If its consular processing, also how long it take for h1-B consular processing).

        -Another question is, if I start working for company A, do I have to absolutely be working until company B receive the receipt or approval (which may take 2-6 months).
        — Also is it possible to delay the join date for company A until company B receives the receipt. (which is one do you think is better).

        — Please help to provide a most feasible way, so I do not have to leave the US and still can join company B, it is very unethical to use company A and I may be accumulating bad karma.

        – Please help me out as you are the expert in this genre.

        Thanks and Regards,

        Keep up great work and I am sure you are accumulating good Karma.

        Umesh


        • Anil Gupta
          Anil Gupta 17 Feb, 19 at 4:37 pm

          ## Multiple employers on H1B
          You can work for multiple H1B employers only if you have an explicitly approved concurrent H1B.

          ## Visa Interview
          When you go for visa interview, you have to fill the employment details in your Visa application. You are not the first one to think in this direction. USCIS and US government are smarter than you think.

          ## Company B applies after H1B 60 day grace period
          1. As I already said, if you join company A, then transition from A to B is within USA.

          2. If you are brave enough to reject company A offer, make sure company B files before March 4 else, you have to leave US and can ONLY come back to US after Company B’s application is approved.

          3. Applying B1 or B2 is not as easy as you might think simply because you and your wife are already on a non-immigrant visa with immigrant intent. The chances of visa refusal are extremely high.

          ## Working Absolutely on H1B for Company A
          I am not sure if you understand the H1B visa at all or not. You have to MAINTAIN the H1B status while you are in US at all times without any doubt.
          If you do not work, how will you maintain H1B status?

          I have already given you the best options to stay in USA. But you are speculating too much.


          • umesh singh
            umesh singh 17 Feb, 19 at 6:48 pm

            Hi Amit,

            Thanks for further insight in my situation.

            What I meant about “not working for company A” is to delay my joining date for a week or two, until the company B receives receipt?
            Do you think I am jeopardizing my status?
            or is absolutely necessary to work once the Attorney receives the H1-B transfer receipt for company A transfer?

            Please help to understand.
            Thanks


            • Anil Gupta
              Anil Gupta 18 Feb, 19 at 9:01 am

              Since, you are in 60 day grace period, you should start working on or before 60th day if you want to stay in US.
              If you fail to re-instate your H1B status by 60th day, you should leave USA on 61st day.


  37. Anil Gupta
    Anil Gupta 9 Feb, 19 at 2:09 pm

    Hi AMK,
    You are a complete mess who does not think even once before venting out and understanding plain English.

    The advice given above is exactly in sync with what your immigration attorney has advised you.

    You need to learn and understand English sentences before speaking strong words.

    Please don’t read and comments on blogs if you can’t understand and reply with responsibility.


  38. MS
    MS 28 Jan, 19 at 8:52 pm

    Hi, I have a question about the LCA approval. Is the current shutdown affecting the LCA apporval. We cannot file for H1B transfer until LCA is certified. Can we begin work with LCA pending before the 60 day grace period ?


    • Anil Gupta
      Anil Gupta 28 Jan, 19 at 8:52 pm

      LCA can be filed in shutdown too.


      • MS
        MS 9 Feb, 19 at 10:02 am

        Yes, it can be filed. But I think currently it is taking time to get it certified. What are the options if it is not certified before the 60 day grace ? Is there a way to follow up or track the LCA status.?


        • Anil Gupta
          Anil Gupta 9 Feb, 19 at 10:12 am

          Your employer can follow up if required.


          • MS
            MS 9 Feb, 19 at 10:43 am

            Thank you for the inputs. Your advice really provides a much needed help and encouragement.


  39. AMK
    AMK 28 Jan, 19 at 8:52 pm

    Hi,
    -I am currently out of employment and last day of my previous employment was 12/07/2018 and am on 60 days grace period, as of today its been 41 days and it ends by 02/05/2019
    – My previous employer has revoked H1B-I797 on 01/15/2019.
    – I have my visa stamped on my passport and my I94 is valid till 11/06/2019
    – I have my I140 approved and stayed more than 180 days with employer
    – I got an offer and working on H1b transfer

    Questions,
    1. Should the H1b transfer need to filed or I should join the job before 60 days?
    2. If its just filing, Can I join the job even after 60 days completed?
    3. If we file for H1b transfer will it be counselor processing by default?

    Thanks


    • Anil Gupta
      Anil Gupta 28 Jan, 19 at 8:52 pm

      The answer is already available in above article. Copy pasting it here:
      You can start working with new H1B employer even if your H1B transfer was filed on 60th day and you received the receipt number on 60th day.

      If the petition is going to be filed on 61st day or you will receive the receipt number on 61st day or after, you should ideally go out of USA by your 60th day and plan to re-enter USA.
      After 60th day, you are automatically deemed to be ‘OUT OF STATUS” and it can have ramifications later.


      • AMK
        AMK 9 Feb, 19 at 10:02 am

        Hi Anil, Thanks for replying. But i heard from the company that receipt number wont come on the same day of filing. As it will take 1 week to receive the receipt number from USCIS since premium processing is on hold.


        • Anil Gupta
          Anil Gupta 9 Feb, 19 at 10:06 am

          Usually, if the application is sent by FedEx overnight service, the date it is delivered is considered safe to start working.
          You can take a grace of 2-3 days once delivered.
          So, I suggest to send application in a way that it reaches USCIS on or before 57th day.


          • AMK
            AMK 9 Feb, 19 at 10:12 am

            Sure, my new employer is working effectively to submit it asap. But they are strict that I can join only with the receipt number from USCIS, as thats their company policy.

            Given I have only 2+ weeks, they have to file LCA and then H1B transfer , so to get receipt number it might be a tight timeline.

            As per your point, no matter what I have to leave at end of 60th day. Not sure what I should do now.


            • Anil Gupta
              Anil Gupta 9 Feb, 19 at 10:42 am

              Ya … I can understand the dilemma. But, the rule is a rule and if you don’t follow it, it may create problems for future visa applications.

              So, it is better and in your favor to leave US on 61st day to avoid issues later.

              Once H1B Transfer is approved, you can come back.
              Talk to your Employer’s attorney too to get his view.


              • AMK
                AMK 10 Feb, 19 at 12:27 pm

                Sure I will talk to employers attorney and see what they say.

                I have one other question,

                I have a consultant who already have LCA approved for me and ready to file H1b, lets say if i join that consultant (Employer A) with receipt notice and then can i switch to another new employer (Employer B) with receipt notice, so new employer B can file H1b transfer for me? Given that my current H1b is revoked.


                • Anil Gupta
                  Anil Gupta 11 Feb, 19 at 8:12 am

                  Yes, you can do that.


                  • AMK
                    AMK 11 Feb, 19 at 1:51 pm

                    Thank you so much.


                    • Anil Gupta
                      Anil Gupta 12 Feb, 19 at 12:30 pm

                      You are welcome. All the best and do share the blog with your friends if you liked it.


                    • AMK
                      AMK 12 Feb, 19 at 3:51 pm

                      Sure i will do that


    • umesh singh
      umesh singh 5 Feb, 19 at 2:36 pm

      Hello AMK,

      I am in very similar situation.
      Is it possible you can share with me the consultant information who filled your H1B.

      I have a 10 year old son who goes to school here.

      It is a very critical situation for me.
      I will need your help.
      Please email the information.

      umeshpri@gmail.com
      Thanks and regards.
      Umesh


      • Anil Gupta
        Anil Gupta 9 Feb, 19 at 10:01 am

        Sorry to hear about your job loss.
        Send us an email at contact@am22tech.com with your resume and we can share it with some companies that may have job for you.


      • AMK
        AMK 9 Feb, 19 at 10:01 am

        Umesh, you can contact any consultant. I got a full time now and they are working on filing h1b transfer for me.


  40. PBK
    PBK 28 Jan, 19 at 8:51 pm

    Hi, I need your advice please, I was working for employer A whose H1B petition is valid until 2020 mid, I joined employer B and got laid off after 8 months. I am planning to get back to employer A as his H1B is not yet revoked. If I plan to work for employer A should they need to apply for H1B once again? My 60 days grace period is almost ending and my employer A has filed for LCA just 2 days before the grace period expiry, can I still work for employer A or should I need to leave USA before the grace period? If employer A can run the pay stub before the grace period is that fine or should he need to send the petition for amendment or any to USCIS? please advice.


    • Anil Gupta
      Anil Gupta 9 Feb, 19 at 10:01 am

      Why is old employer posting an LCA? Is there an H1B amendment required for this case?
      You can start working with your old employer immediately after LCA is approved but not before that if the job requirements have changed after last approval.


      • PBK
        PBK 9 Feb, 19 at 10:11 am

        Thanks for the reply, Employer A is like a consultancy, yes the job requirements are changed along with the location being changed so I hope they are submitting the amendment and not exactly sure if they have to apply for H1B transfer. So for my case can I stay in US or should I need to leave as my 60 days grace period is being completed. As the end client also is changing should I need to wait until the H1B receipt is received in order to work?


        • Anil Gupta
          Anil Gupta 9 Feb, 19 at 10:13 am

          I think it is possible to start working for employer A as they have your approved extension. Once you join them, they can start your payroll and then file the Amendment.

          What has your employer told you? Haven’t you spoken to them before joining on how they are going to do it?
          Also, with just 2 days left, you should have already got the answers from employer.


          • PBK
            PBK 9 Feb, 19 at 10:42 am

            Thanks Anil, when I asked them they told that if they release the new offer letter that should be good but I am in a dillemma now planning to talk to the lawyer directly tomorrow. Hope everything goes well.


            • Anil Gupta
              Anil Gupta 10 Feb, 19 at 12:26 pm

              Ok. Let me know the final decision you take.


  41. WVL
    WVL 28 Jan, 19 at 8:51 pm

    Hi Anil: I am a postdoc from one university. My non cap H1B is going to valid until 08/27/2020 and I94 is valid until 09/04/2020, but my current contract is going to end at 02/16/2019. When I first started my postdoc job here at 08/2017, the first contract was going to end at 06/31/2018, but they applied the H1B with three years until 08/27/2020 for me. Since the first contract, the contract has been extended three times until 02/16/2019. I have found another university who would like to sponsor my H1B and they should complete the H1B transfer before 02/16/2019. The current job asked me to sign a resignation letter to confirm that my current job is going to end after 02/16/2019. Should I do it if I want to use the 2 month grace period just in case that the new university cannot make it before the deadline? If no, what is your advice here? If yes, what should I do? Should I contact the international office from the new university to ask them to send the petition letter on my behalf if they cannot make the deadline? Thanks very much in advance.


    • Anil Gupta
      Anil Gupta 9 Feb, 19 at 10:01 am

      The 60 days grace period is for lay off circumstances beyond employee’s control. In this case, if you sign the letter that you are leaving the job, you appear to be perfectly in control of the situation.

      My opinion is that USCIS can deny 60 day grace period in your scenario.

      You can join the new university as soon as you receive the USCIS receipt number. My suggestion is to file in Premium processing and get receipt number before Feb 16 and then you are safe.


      • WVL
        WVL 9 Feb, 19 at 10:11 am

        Thanks for your prompt response. Then can I talk to my current employer to lay me off because of the lack of funding (that is indeed the real reason) rather than asking me to resign the job. Thanks.


        • Anil Gupta
          Anil Gupta 9 Feb, 19 at 10:43 am

          Yes, that would be a better option.


          • WVL
            WVL 10 Feb, 19 at 12:26 pm

            Thanks Anil. Really appreciate your suggestions!


            • WVL
              WVL 11 Feb, 19 at 8:11 am

              Hi Anil: Do you think it would be a good idea to ask the current job not revoke my current H1B? Does that really matter? Thanks.


              • Anil Gupta
                Anil Gupta 11 Feb, 19 at 8:15 am

                USCIS requires each employer to withdraw H1B if the employer is no longer working for them. I do not think employer has a choice.


                • WVL
                  WVL 11 Feb, 19 at 1:51 pm

                  I see. Thanks very much!


  42. NS
    NS 14 Jan, 19 at 9:47 am

    What happens if I resign EmployerA on Jan31st (Having EmployerA Petition I94 valid till July31st), join on EmployerB on Feb15th on receipt number exhausted 15 days of my grace period, work continuously with EmployerB till Mar31st at point my H1B Transfer is denied with EmployerB. Will i get remaining 45 days of 1st Grace period or will i get fresh grace period of 60 days on the EmployerA petition I94 valid till July31st.


    • Anil Gupta
      Anil Gupta 14 Jan, 19 at 10:04 am

      Grace period of 60 days has to be used in ONE shot. Remaining days cannot be used later.
      You get a new 60 day grace period with each NEW H1B 3 year extension/transfer approval though.

      In your example, you will NOT get to use remaining 45 days.


  43. VA
    VA 18 Dec, 18 at 2:42 pm

    Hi, I have a question regarding H1B 60 day grace period. I got terminated on Nov 2 by company A. I got another job in company B. They filed for my H1B transfer and the receipt no. is received on Dec 17. Company B is giving joining date as Jan7(Post 60th day of grace period Jan2). Do i need to be on payroll on or before 60th day of grace period


    • Anil Gupta
      Anil Gupta 18 Dec, 18 at 2:53 pm

      I strongly recommend to join new employer before 60 day period is over. Your “period of authorized stay” is only valid up-to 60 days.
      Ask them to give any date in the last week of December. It is okay even if you join on 60th day. This will re-instate your H1b status.


  44. Umarani
    Umarani 16 Dec, 18 at 10:55 pm

    Im on h1b and got laid off on dec 14. My i94 has already expired. Do I get 60 days grace period or 0?


    • Anil Gupta
      Anil Gupta 16 Dec, 18 at 11:33 pm

      No, you do NOT get 60 days if your i94 has expired.
      You should leave US to avoid unlawful presence in US.


      • guest
        guest 17 Dec, 18 at 6:05 pm

        Does he/she get a 10-day grace period though? I will be in the same situation in a few months


        • Anil Gupta
          Anil Gupta 17 Dec, 18 at 8:05 pm

          There is no official grace period if your i94 has expired. In reality, people do use 10-15 days as a benchmark and USCIS generally does not question in future visa applications.
          But, if you stay beyond this time, this will be counted as overstaying and you can be questioned about it at immigration entry points.


  45. PN
    PN 8 Dec, 18 at 6:07 pm

    Can H4 visa holder travel back to home country and re-enter US while H1B holder awaits for new sponsorship during the 60 day grace period?


    • Anil Gupta
      Anil Gupta 8 Dec, 18 at 6:36 pm

      No. You should NOT travel while H1B is in 60 day grace period. You will not be able to re-enter US without first getting H1B and H4 approval.


  46. BC
    BC 5 Dec, 18 at 1:27 pm

    Hello, I was laid off while on my H1-B. I was able to secure a job with a new employer within the 60 day period. But, due to administrative delays from the employers side, my H1b transfer-consular processing was filed after the 60 day period. So, I was asked to leave US by the company’s attorney and wait in my home country until my H1b is approved. I took 10 days more to wrap things up. But my i-94 was still valid when I departed the US. Will the extra 10 days (after my 60 day grace period) cause any issues with my pending h1b petition/visa interview? Any advice is very much appreciated. Thanks for patiently answering everyone’s questions.


    • Anil Gupta
      Anil Gupta 5 Dec, 18 at 1:32 pm

      I don’t think extra 10 days would make much difference. Don’t worry.


      • BC
        BC 5 Dec, 18 at 1:37 pm

        Thanks a lot Anil !


  47. Karan
    Karan 17 Nov, 18 at 9:09 am

    Can H4 EAD spouse keep working in 60 day grace period?

    Can you Please re confirm this? I got response as NO h4EAD spouse cann’t work during grace period.


    • Anil Gupta
      Anil Gupta 17 Nov, 18 at 9:53 am

      Yes, as per my information H4 EAD can keep working.
      Where did you get the information from?


      • Karan
        Karan 20 Nov, 18 at 8:57 pm

        Do we have any clarity on this? If H4EAD can keep working during 60 days grace period?

        Any authentic link or attorney recommendation?


        • Anil Gupta
          Anil Gupta 20 Nov, 18 at 9:19 pm

          You said you got response as ‘No’ and never shared the source.

          The information shared above is written after research on various platforms.

          If you are not sure or comfortable, I would suggest to consult an attorney.


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