USCIS issues guidelines for H-1B visa holders laid off or facing termination
Summary:Options for Nonimmigrant Workers Following Termination of EmploymentWhen nonimmigrant workers are laid off, they may not be aware of their options and, in some instances, may wrongly assume that they have no option but to leave the country within 60 days.
When a nonimmigrant worker’s employment ends, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorized stay in the United States:
1. File an application for a change of nonimmigrant status;
2. File an application for adjustment of status;
3. File an application for a “compelling circumstances” employment authorization document; or
4. Be the beneficiary of a nonfrivolous petition to change employer.
If one of these actions occurs within the up to 60-day grace period, the nonimmigrant’s period of authorized stay in the United States can exceed 60 days, even if they lose their previous nonimmigrant status. If the worker takes no action within the grace period, they and their dependents may then need to depart the United States within 60 days, or when their authorized validity period ends, whichever is shorter.
Nonimmigrant status is typically based on an approved Form I-129, Petition for a Nonimmigrant Worker, or after admission, a subsequently approved Form I-539, Application to Extend/Change Nonimmigrant Status. A period of authorized stay typically includes the period when a timely filed nonfrivolous petition or application requesting an extension of stay or change of status is pending with USCIS, as described in detail below.
Maximum 60-Day Grace Period
Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status in that same classification after the end of employment for up to 60 consecutive calendar days or until the end of the authorized nonimmigrant validity period, whichever is shorter (the “maximum 60-day grace period”). See 8 CFR 214.1(l)(2).
The worker can preserve their period of authorized stay in the United States, however, as long as the worker timely files, if eligible, an application for a change of nonimmigrant status, an application for adjustment of status, or an application for a compelling circumstances employment authorization document, or if the worker is the beneficiary of a nonfrivolous petition to change employer before their nonimmigrant status expires.
If the worker is an eligible H-1B nonimmigrant and an employer files a new nonfrivolous H-1B petition on their behalf, the worker can begin work immediately after USCIS receives the petition and continue to maintain their H-1B status.
Please see the additional sections below for a detailed overview of these options.
Q: Why is the 60-day grace period important?
A. Before a regulatory change in 2016, there was no grace period for a terminated nonimmigrant worker. The maximum 60-day grace period provides time for a nonimmigrant worker to retain their nonimmigrant status. Alternatively, the 60-grace period provides time for the worker to request a change of status, which may allow the worker to continue their job search from within the United States, even if the grace period and the worker’s current nonimmigrant status expire. This is because a worker may remain in an authorized period of stay based on a timely filed nonfrivolous application to change to a new nonimmigrant status.
The grace period also provides time for certain spouses of nonimmigrant workers to continue their own employment if they have an Employment Authorization Document or are employment-authorized incident to status.
Within the grace period, eligible H-1B nonimmigrant workers may also begin employment again as soon as a new employer properly files a new H-1B petition, rather than waiting for the new petition to be approved. A worker filing for employment in another classification must wait to begin employment until the new petition is approved, but given the availability of premium processing, the wait for petition adjudication is often less than 15 business days.
Q: When does the 60-day grace period start?
A: The maximum 60-day grace period starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.
Q: How do I apply for the grace period?
A: We will determine whether the grace period applies to your case during the adjudication of a subsequent extension of stay petition, change of status application, adjustment of status application, or compelling circumstances employment authorization application. Petitioners and applicants should state in a cover letter that they are requesting that we favorably exercise our discretion to grant the up to 60-day grace period.
Q: Does the 60-day grace period apply to me if I voluntarily leave my job?
A: Yes, the up to 60-day grace period may apply to voluntary and involuntary cessation of employment.
Q: How many times can I use the grace period?
A: You are eligible for the maximum 60-day grace period once during each authorized employer petition validity period. For example, if you are terminated from Employer A, we may favorably exercise our discretion to grant the grace period and consider you to have maintained status for up to 60 days. If you have a new employer petition approval with a new validity period with Employer B and are subsequently terminated, you may be eligible for another 60-day maximum grace period during the petition validity period with Employer B.
Q: What is my status during the grace period?
A: When favorably exercising its discretion, we would consider you to be maintaining nonimmigrant status during the maximum 60-day grace period.
Q: Can I work during the grace period?
A: As during any period of authorized stay, employment is prohibited during the up to 60-day grace period unless otherwise authorized. As long as you remain in a period of authorized stay, which can last beyond the grace period, you remain eligible for the same options to obtain work authorization in the United States as you did during the grace period. (For more details, please see the sections below on portability, change of status, adjustment of status, and compelling circumstances Employment Authorization Documents.)
Q: What if my employer rehires me during the grace period?
A: If your petition with that employer remains valid and you are rehired in the same position, you may resume work with no further action. If you are rehired in a new or changed position, your employer may be required to file an amended or new petition to notify us of any material change. If your employer notified us of the termination, thus automatically revoking the petition approval, the employer would need to file a new petition with us.
Q: Can I travel during the grace period?
A: The grace period ends upon any departure from the United States. If you depart the United States during the maximum 60-day grace period, you must seek another immigration status that would permit reentry.
Q. What happens if my employment is terminated while I am outside of the United States?
A: If a nonimmigrant worker is outside the United States and terminated with no notice period, or the notice period ends before the worker is able to return, then the grace period does not apply, and the worker must seek another immigration status that would permit reentry. If the worker can, and, in fact, does return to the United States before the notice period ends (that is, before the effective date of termination), the discretionary grace period may apply.
Q: Is my dependent spouse’s Employment Authorization Document (EAD) valid during the grace period?
A: Yes, if your spouse has an EAD or employment authorization incident to status, this authorization to work will remain valid during the maximum 60-day grace period.
Q: What happens to my post-completion Optional Practical Training (OPT) EAD if my employment is terminated?
A: The maximum 60-day grace period only applies to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents). During post-completion OPT, F-1 status is dependent upon employment. Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT. Students granted 24-month Science, Technology, Engineering, and Math (STEM) OPT may not accrue an aggregate of more than 150 days of unemployment during a total OPT period, including any post-completion OPT period and any subsequent 24-month extension period. See 8 CFR 214.2(f)(10)(ii)(E).
