Many companies do layoffs due to change in strategy, cost-cutting measures, mergers or downturn in their business due to situations like COVID-19. In such cases, employees lose their jobs and some of them could be H1B holders as well. In that cases, H1B employees need to think of their options and how it works
In the past, there was no concept of grace period for such H1B holders, who lose jobs. They would go out of status upon job termination or layoff…But, in Jan 2017, USCIS introduced a new set of rules with grace period provisions to help certain employment-based non-immigrants such as H1B holders during layoffs. In this article, we will review the details and FAQs of the official rules on the same, including the COVID-19 situation.
What is H1B Grace Period Rule as per DHS ?
As per Dept. of Homeland Security(DHS) regulation that came into effect in Jan 2017, H1B Visa holders can get a grace period of up to 60 days, if they lose their job due to layoff or any other unforeseen reasons, before the end of their H1B petition validity. H1B holders can use the 60 days grace period to find another job or change visa status to another status. Below is the official rule text screenshot for the same.
The 60 days grace period is applicable for non-immigrant workers on H1B, H1BI, L1, O1 E3 and TN Status. The reason for giving the grace period is for job portability for the employees to be able to find relevant work and continue their employment as their employment period ended before the completion of the given duration in their actual approval notice.
H1B Visa Grace Period with I-94 expiring before 60 days
The regulation at 8 CFR 214.1(l)(2) clarifies situation with I-94 expiration date that is earlier than the H1B petition approval notice. It says “H1B Holder gets 60 Days of grace period or until the end of authorized validity period of their status(basically I-94 end date), whichever is shorter”.
So, if your I-94 or petition end date is before 60 days from your job loss or lay off, then your grace period is shortened until the expiration of your I-94 date. Below is screenshot of the official rule text on the same. See below highlighted text in green and purple.
What does grace period of 60 days mean for H1B holders with Job Loss
The grace period, which is a maximum 60 days for H1B, L1 and other visa holders means that they will be considered in “Valid Status” (read US Status vs Visa ) and not considered ‘out of status’ for the entire 60 days duration. It is important for H1B Transfer and to continue to stay in US.
In general, you need to be in ‘valid status’ in US to file any petitions with USCIS for extension or change of status(COS) to be approved with I-94 to continue to stay in US. These 2 months or 60 days grace period gives the H1B or L1 holder legal status to find another employer to file another H1B or do change of status to another visa as needed.
Is the 60 days grace automatic ? USCIS Discretion ?
As per regulation, the 60 days grace period for H1B or L1 holders is not automatic, but discretionary. What it means is that DHS/ USCIS has full right to eliminate or shorten the grace period based on a case by case basis. As per official H1B grace period rule it says “DHS may eliminate or shorten this 60 days grace period as a matter of discretion”. So, you cannot take it for granted. See red highlighted text in above screenshot.
Why would USCIS to reduce 60 grace period ?
USCIS does not give details on why they would eliminate or shorten the grace period for H1B holders. Having said that, some of the common reasons that USCIS could use to reduce or end grace period is for situations involving unauthorized employment, fraud or criminal charges tied to the H1B holder. As long as you do not engage in any of these kind of activities, you should get fully 60 days grace period.
How to request for 60 days grace period for H1B, L1, E3 visa holders ?
There is no special form required for requesting grace period. It is pretty much standard process, when you apply for transfer…additionally, you would need to submit proof of your layoff or resignation. Basically, you would submit a cover letter explaining your situation of Job loss , with supporting documentation, when you file for H1B Transfer or Change of Status application with USCIS. This way, they would consider your status as valid, even if you do not have pay stubs.
How many times can you use the 60 days grace period ?
H1B, L1, E3 and other visa holders can only use the 60 days grace period ONCE for H1B petition validity period. What it means is that, let’s say you are working for Employer A, you get one 60 days grace period for the H1B validity with Employer A. Now the catch is, if you quit or got laid off from Employer A and plan to re-join Employer A, lets say after 30 days during your grace period, then you do not get another 60 days grace period with Employer A as the same H1B petition will be used.
Unlike, if you transfer to Employer B, then as you have a new H1B petition with new validity period, you get another 60 days grace period. You may watch below short video as well.
Do I get grace period, if I quit or resign the job, instead of Layoff ?
The regulation does not differentiate between layoff, job loss, termination, resignation or quitting the job. So, technically 60 days grace period should be available to all H1B, L1 and other visa holders, who either submit resignation or quit, instead of layoff. Having said that, USCIS has the discretion to decide or reduce the grace period, based on your case and circumstance as it cannot be taken for granted automatically.
Can we just resign and automatically get grace period ?
Though the regulation does not differentiate between job loss vs. resignation or quitting the job, it has to be noted that the 60 days grace period is USCIS/DHS Discretion and not automatic. The original intent of the rule was to help highly skilled non-immigrants in dire situations. If USCIS is not convinced and they may not issue you 60 days grace period or make it shorter, thereby making your stay “out of status”. So, it is NOT recommended to take the H1B grace period rule for granted and resign job and apply for transfer later…discuss with your attorney before you make any such decisions.
What if I exceed 60 days grace period with H1B Transfer ?
Well, technically you are considered to be in valid status until you hit the 60 days grace period mark or expiration of I-94. Once you go past 60 days, your status is no longer valid and you are considered as ‘Out of Status’.
Let’s say you apply for H1B transfer and get the USCIS receipt on day 60, you can still start to work from day 60 and it will be fine, but if you do not have the receipt on 60th day, you are entering a tricky zone and you should talk to your attorney and decide. Ideally, the safest thing to do is leave and re-enter US. It is always recommended to go for premium processing, if available, in situations like these.
Can H1B dependents on H4 EAD work during 60 days Grace Period ?
In general, you need to be in a valid status to continue working. During 60 days grace period, H1B holder is technically in status, hence H4 Visa holder is also in status. So, logically, H4 holder with valid EAD maybe able to work during the grace period. But, the tricky part is, USCIS regulation clearly tells that H1B holder cannot work during grace period, but does not give any guidance on H4 holder working on EAD. So, it is a grey area and you need to discuss with attorney.
Also, as USCIS mentioned, the 60 days grace period is discretionary and not automatic, you need to be very careful. If let’s say USCIS does not give you 60 days grace period or shortens it, then H1B holder would not have been in status, so H4 visa holder would also not have been in status…so, you would have done unauthorized employment on H4 EAD as there was no grace period for you as well…so, it can be tricky, so, the suggestion is to either stop working on the day your H1B spouse loses job, to avoid issues as it is subjective or discuss your case with your immigration attorney and act accordingly. Better safe than sorry !
Any additional USCIS H1B Grace Period with COVID-19 ?
No, there is no special provision or concession given by USCIS for H1B holders during the COVID-19 pandemic. Even, if your company does a layoff due to Coronavirus, you still have the same 60 days grace period for finding a new employer. There is no additional extra time given by USCIS due to the pandemic.
If you cannot find a job within the grace period, it is best to leave the country within the 60 days or apply for Change of Status to other visa type. If you cannot really travel out of the country due to COVID-19, you may consider applying for B2 Visitor Visa.
Other Common FAQs
It starts on the day the lay off is done or job is terminated…or you resign. It is not tied to your payment cycle like 1st or 15th of the month. As soon as you get notice that your job is terminated, your grace period starts from that day. You need to make sure all of these documentary evidence is submitted during H1B Transfer or Change of Status.
No, you cannot carry forward unused grace period from 60 days and use it another time. As mentioned above, you can use it only once per petition validity period and cannot use it again in chunks as needed.
No, you cannot work part time or engage in any sort of unauthorized work during the 60 days grace period.
You can start working for the New Employer, as soon as you have received the USCIS Receipt Number. E.g. If you lose your job and you filed for H1B transfer with new employer and got receipt after 20 days during the grace period, you can start working right away after you have receipt number from USCIS. You do not have to wait for completion of 60 days grace period.
No, you do not get any 60 days grace period, if your H1B or L1 petitions are denied by USCIS. The grace period is applicable only for cases, where the employment ends earlier than the H1B or L1 petition validity period.
You may travel outside of USA in grace period, but you cannot re-enter as you will need valid Visa to re-enter. Unless you have a valid visa for a different status, you cannot re-enter. The grace period can be used to settle up your affairs in US and move out or to find another employer and get status extended using transfer.
Your visa stamp has no impact with the H1B/L1 grace period or your employment termination You can use your H1B or L1 visa stamp to re-enter US by showing the new H1B /L1 Approved petition approval notice ( I797 approval notice) from USCIS. No need to go for stamping again.
What are your thoughts on the H1B, L1 Grace Period of 60 Days ? Your experiences