H1B 60 days Grace Period USCIS Rule – H4 EAD Validity

Written by Anil Gupta
  By Anil Gupta - Updated on  24 Apr, 19
  171  

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.


USA Work in USA - H1B, L Visa  

   171 Questions & Answers



  1. 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


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