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  27 Nov, 19

  226    


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.

H1B Grace Period Start Day

The grace period will start immediately after the last day of employment and not from the last pay stub/salary day.

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

In this case of lay off, you will actually get 120 days (60 by state + 60 by USCIS). There is no clear guidance by USCIS as to state law. My suggestion is to still count this state law’s 60 days as your USCIS 60 day grace period to avoid any issues or talk to your attorney before taking any decision.

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 H1B transfer, apply for a change of status or prepare to leave USA.

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.

How to Request H1B 60 days Grace Period

There is no official USCIS form for requesting the 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

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.

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.

Can USCIS Deny 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 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.


USA Work in USA - H1B, L Visa
 



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

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

    Thanks again,

    Radha


  5. Anil.Gupta
    Anil.Gupta

    Yes, you can visit Canada for H1B visa stamping.


Comments are closed. Ask question on Forum (we answer in 1-24 hour)

27 more replies

  226 Useful Questions & Answers

  1. 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


  2. 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.


  3. 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.


  4. 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