H1B 60 days Grace Period USCIS Rule (Lay off, Start Date, Severance?)

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.

Am22tech
  By Am22tech    Updated  4 Aug, 20


H1B 60 days Grace Period Meaning: 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 another employment or apply for a visa change of status.

You can stay in the 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.

Grace Start Date with Severance Pay

H1B Grace Period Start Date with Severance Pay can be assumed to start after the severance period is over.

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

Start counting the calendar days from your last day of work. You can use this calculator to find the 60th-day mark.



Open App in new Window

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 what immigration attorney Emily Neumann says starting at time 49:57 in this video chat:



Open file in New Window

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

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 the 60 day period.

If you want, you can add a cover letter with your application explaining the lay off situation. But, it’s not required officially by USCIS.

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

H4 EAD can work during the H1B grace period.

The H4-EAD is attached to valid H4 status, which in turn is dependent on valid H1B status.

In the 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.

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 do 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 the employee. Hence,  we STRONGLY advise against using the grace period by planning and resigning from your job.

Can i Travel Outside US in 60 day H1B grace period?

You cannot travel outside the USA in a 60 days H1B grace period.

The whole idea of a 60 day grace period is to allow you to stay within the USA after the loss of employment. If you travel out of the USA, the grace period ends right there.

You would need a VALID visa to re-enter the USA again.

Once you leave the USA anytime during 60 day period or after, your H1B transfer application, if not already approved while you were inside the USA, will be approved only with consular processing.

This means you will have to get the Visa stamped in your passport to re-enter the USA.

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 go visit Mexico or Canada and get H4 visa stamping. You can then re-enter the US using H4 and then immediately apply for H4 EAD.

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

Example:



If you are fired by H1B employer and your i94 is valid for the 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.

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 1:

  • 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.

Example 2:

  • 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 the 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

You can start working with the new H1B Transfer employer as soon as you file a 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 the 60th day, you are allowed to start work. Check with your employer if they are okay for you to start working.

Transfer after 60 days

You can start working with a new H1B employer even if your H1B transfer was filed on the 60th day and you received the receipt number on the last 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 the USA by your 60th day and plan to re-enter the USA.
  • After the 60th day, you are automatically considered ‘OUT OF STATUS‘ if you have not yet applied for H1B.

Multiple Transfer Filing

You can file multiple H1B transfer during grace period.

You can also file transfer with employer A and start working for them to get back into H1B status.

After the 60 day period, you can file another transfer to employer B and join them even when the employer A’s transfer is still pending. It is legally possible but the best option would be to first get employer A’s approval.

Old Employer H1B Visa Stamp

You can use the OLD employer’s visa stamp to re-enter the 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 the USA port of entry.

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




Author

Am22tech
  By Am22tech  

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. milesaway25
    milesaway25

    Anil,

    I have been laid off recently by my employer, sep 1 is last date with my employer.
    My visa is valid upto 25-sep-2019 and My I94 is valid up to 05-Oct-2019. I have an approved
    I-797 petition With my current employer for 3 years upto (sep-2022). I am in my 7th year of h1 with approved I-140.

    1. Do you recommend to go for stamping with approved petition from my current employer before Sep1.
    2. Worst case if i could not find job before 05-Oct-2019 and if leave the country. Can I find any employer can file h1 transfer using my i-140 after 05-oct-2019 and can still come back?


  3. Anil.Gupta
    Anil.Gupta

    Hi @milesaway25

    Sorry to hear about your lay off.

    I don’t understand as to why you want to go for H1B visa stamp at this time? Any specific reason?

    You can file H1B transfer using approved i140 anytime in 60 days or after 60 (from outside USA) and come back to US after its Approval.


  4. Srini
    Srini

    Hi Anil,

    I was laid off recently by my employer while on H1B. I am still searching for opportunities and I understand I have 60 days grace period.

    Can i enroll in a part-time program through a local college to get I-20 so that I can maintain my status and keep searching for jobs?

    Thanks for your help!
    Srini


  5. Srini
    Srini

    Considering if the employer is not filing under premium processing and if the receipt will arrive after 60th day, will I be able to stay in the US?

    • If not, and I had to leave USA, do you i have to get my stamping done again in order to re enter.


  6. Srini
    Srini

    Thank you for the quick response Anil!


  7. Srini
    Srini

    Thanks for the great help and providing clarification Anil!


  8. 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.


  9. RaRa
    RaRa

    Thanks so much for the information, Anil. By valid you mean the expiration date on the Visa stamp?

    Thanks again,

    Radha


  10. Anil.Gupta
    Anil.Gupta

    Hi @RaRa

    Yes, valid means unexpired.


  11. jubin_cherian
    jubin_cherian

    Hi Anil,
    My current H1B is valid until 4/30/2022 and have approved I 140 (H1B got extended beyond 6 years). But I lost job and grace period ends in a week time. I didn’t get a H1B sponsored job yet. So if I am going back to India, can I apply for a transfer with a new employer, stamp and come back using the non-cap petition?
    Jubin


  12. jubin_cherian
    jubin_cherian

    Now we applied for cap exempt H1B transfer (Not H4) since we use compelling EAD (C(35) and C36) respectively.

    So we have to go outside US and stamp to regain the non-immigrant status.

    H4 transfer is not applied because spouse is not in H4 status but can apply and stamp H4 when I am going for stamping.

    My question is can we go for stamping in Canada?
    Are they allowing EAD to H1B status change?

    We never been out of status. Please help.


  13. jubin_cherian
    jubin_cherian

    Hi Anil,
    My parents came here before me and both are US Citizens and aged.

    I applied for compelling EAD based on that and got approved.

    Due to job loss, I started using that after the H1B 60 grace period and got a new project as well.

    When we start using that compelling EAD we will loose our non-immigrant status but can regain it through visa stamping.

    So the current employer is transferring my cap-exempt H1b (I 140 approved - recent H1B extension valid until 2022) and trying to stamp it outside USA.

    Hope you understand the situation. My question is can we go Canada for stamping from EAD - to - H1B / H4?


  14. Anil.Gupta
    Anil.Gupta

    Yes, you can visit Canada for H1B visa stamping.


  15. su_re
    su_re

    Anil,

    Thank you for this nice post on H1B 60 Days Grace Period. One important thing this post is missing is the ~10 to 15 days required for LCA approval/certification.

    When someone looses a job, he/she should be mindful to find a new job at least by 40th day, and get the ball rolling for the new job’s h1b petition i.e. get the LCA filed by 40th day and get it approved/certified before the 60th grace day, and file the new I-129 H1B petition on or before the 60th grace day.

    I just want to emphasize that when a person looses a job, they should not wait until the last day 59th day or 60th day to file the h1b petition.


Comments are closed. Ask question on Forum

19 more replies