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. 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.


  2. 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


  3. 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.


  4. 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.


  5. 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.


  6. 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?


  7. 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.


  8. 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.


  9. 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.


  10. 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.




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