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  25 Aug, 19

  220    


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. 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. 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


  4. Srini
    Srini

    Thank you for the quick response Anil!


  5. Srini
    Srini

    Thanks for the great help and providing clarification Anil!


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21 more replies

  220 Useful Questions & Answers

  1. 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.


  2. 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.


  3. 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.


  4. 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!


  5. 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.


  6. 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.


  7. 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.


  8. 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.


  9. 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 !


  10. 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.


  11. 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.




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