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 Anil Gupta
  By Anil Gupta          Updated  17 May, 19

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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
 



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