H1B 60 days Grace Period USCIS Rule – H4 EAD Validity

Anil Gupta  18 Feb, 19      59  USA Work in USA - H1B, L Visa

H1B 60 days Grace period meaning

DHS 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, if they are laid off due to the circumstances beyond their control.

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 Maximum 60-Day Grace Period after job loss

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.

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 the grace 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 keep working in 60 day 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.

H1B carry over un-used Grace Period days?

The 60 day grace period must be used in one shot. Unused days, if any, cannot be carried over to another grace period.

How many times can 60 Grace Period be availed?

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 60 days Grace period
H1B 60 days Grace period

Can USCIS deny or cancel Grace period?

USCIS can deny 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 during grace period 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?

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.

Laid off by H1B employer, i94 is valid for next 28 days

You only get lower of 60 or i94 expiry date as your grace period. In this case, you will only get 28 days as grace period.

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.

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.

H1B Transfer after 60 days grace period – Consular processing?

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.

Use old employer valid Visa stamp to re-enter USA after 60 day grace period

You can use the OLD employer’s visa stamp to re-enter USA if the visa stamp is still valid.
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.

H1B grace period start – from the end of employment date or the last pay stub?

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

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  1. 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   18 Feb, 19 at 9:01 am

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

  2. 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


    • ## 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   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   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   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   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.

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