H1B visa - L1 Grace Period USCIS 60 Days Details

H1B Grace Period 60 Days USCIS Rule – Job Loss, You Quit, H4 EAD, FAQs

In Apply H1B Visa by KumarUpdated : 15 Comments

Some of the unfortunate H1B holders go through situations, where their company does a layoff as part of cost cutting, merger or acquisition…in the past, there was no concept of grace period and H1B holders were out of status upon job termination or layoff…but, in Jan 2017, USCIS made effective a set of rules that helps certain employment based non-immigrants such as H1B holders. Let’s look at the official rule details and FAQs on the same.

What is Official H1B Grace Period 60 Days USCIS Rule ? Regulation Details ?

H1B Visa Grace Period 60 Days USCIS Official Rule ReferenceAs per regulation that came into effect in Jan 2017, H1B Visa holders can get a grace period of 60 days to find another job or change visa status, if their employment on H1B visa is terminated due to layoff or other unforeseen reasons, before the end of their H1B petition validity.  The grace period is applicable for non-immigrant workers on H1B, H1BI, L1, O1 E3 and TN Status.  You can see the actual text below from the regulation in the adjacent image.  One thing that this text in regulation, does not clarify is how the 60 days grace period works with earlier I-94 expiration, let look at more details for that info.

How does 60 Days Grace Period work with earlier I-94 Expiration Date ?

As we look at more details of the regulation at 8 CFR 214.1(l)(2), it clarifies the situation with I94 expiration or earlier end of petition.  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. See below highlighted text in green and purple.H1B Visa 60 Days Grace Period with I94 Expiration Rule

What does the H1B visa grace period of 60 days mean for employees with Job loss ?

The grace period of 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.  In general, you need to be in ‘valid status’ in US to file any of the petitions for extension or change of status for USCIS to approve such petitions.  These 2 months or 60 days grace period gives the H1B or L1 holder to find another employer to file another H1B or do change of status to another visa as needed.

Is the 60 days grace automatic or USCIS has power to reduce or Cancel the grace period ?

As per regulation, the 60 days grace period for H1B or L1 holders is not automatic and discretionary. DHS/ USCIS has full right to eliminate or shorten the grace period based on a case by case basis. See red highlighted text above in screenshot.

What are the common reasons for USCIS / DHS to reduce or Cancel the 60 grace period ?

Some of the common reasons that USCIS uses 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.

Any form required to file with USCIS to request the 60 days grace period for H1B, L1, E3 visa holders ?

No, there is no need of filing any form with USCIS to request the 60 days grace period. It is automatic and no need to do anything. You can 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.

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.

Can I carry forward the unused 60 days Grace Period and use it in chunks for future  ?

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.

Can you do part time work during 60 days Grace Period  ?

No, you cannot work part time or engage in any sort of unauthorized work during the 60 days grace period.

When Can I Start working during Grace Period with H1B Transfer ?

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.

Do I get 60 days grace period, if I quit or resign the job, instead of layoff or termination by Employer ?

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 their 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 H1B 60 days grace period ? Is it recommended ?

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.

When does the 60 days grace period start for H1B or L1 visa holder when they lose job ?

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.

Do I get 60 days grace period , if my H1B or L1 petitions are denied by USCIS ?

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.

Can I travel outside of US during 60 Days grace period and re-enter ?

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.

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 ‘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.

How does H1B /L1  grace period impact my Visa Stamp in Passport to re-enter US ? Can I use the same ?

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.

Can H4 EAD dependents work in 60 days H1B Grace Period ?

In general, you need to be in 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. 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 !

What are your thoughts on the H1B, L1 Grace Period of 60 Days ? Your experiences

ReferencesUSCIS Non-Immigrant Visa Changes Regulation – 2017  , USCIS H1B 60 Day End Date Regulation 2017

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Comments ( 15 )

  1. Juliet

    Aloha! I have a question regarding the H1B1 transfer process. I’m an elementary teacher in Hawaii under a Singapore H1B1 visa, intending to apply for a H1B1 renewal/transfer under my new employer in Washington state. My visa ends on May 31st. For the past few years, I’ve been on a visa extension starting on June 1st and ending on May 31st the following year, since I have been with the same school and have taught summer school in addition to the normal school year. When my new employer in Washington applies for a visa transfer/extension renewal for the new school year, I’m quite certain that employment will not begin till August 1st. Given the 60 day grace period, will the later start date affect the H1B1 renewal/transfer process? Or should I request for the visa to begin before August if that is somehow possible?

  2. Pratik

    Hi,

    I am currently working for Employer A and Employer B has already transferred my H1B visa with a start date May 1, 2019 (example). I have received my new I797 of Employer B. Can i quit my job on April 1, 2019 and take a break of 30 days before starting my new job with Employer B on May 1, 2019? Will my 60 days grace period start? Even if it starts, having a valid H1B from May 1, 2019 create any issues?

    If there won’t be any problem, then can i travel internationally and re-enter with my Employer A visa stamp + Employer B I797?

    NOTE: H1B visa stamp from Employer A is valid until 06/2020 and I94 admission is up to 06/2020.

    Thanks!

  3. Satish

    Hi,

    I am Stem opt ,on valid F1 visa.I am cap exempt on H1b ,as I have an H1b from jan 2013 and my current employer applied for h1b on sept 26.My stem opt ends on Feb 4 and it seems premium processing which was supposed to reopen on Feb 19,may or may nor reopen.

    I am eligible for H4 EAD ,so If I go to India,get H4 stamped and come back to US apply for EAD and wait till H1B is approved or premium restarts and will later do consular processing of H1b so that I continue working on H4 EAD and then H1B .–Will coming back to US on h4 ,will it affect my HBb petition?

    Can i convert my current H1b petition from COS to Consular processing ?

  4. Crazy_Case

    Hi,

    Need help with below information.

    My H1b is going expire very soon. Company B has already filed the LCA, but I suspect it will get certified after day or 2 from my H1B expiration date.

    My question is – can I do H1B transfer after H1B has expired but with a valid I94 ? Is it possible ? Will USCIS process H1B transfer if petition is received by USCIS after 2-3 days or at max within a week after H1B expiration but before I-94 expires ?

    Please advise guys..
    @Kumar your inputs too please.

    Thanks,

  5. Abc

    Hi Kumar,

    a) Due to some pressure at work I had to quit my full time job ( on h1b).
    Once notice period is complete, can I search for a new employer and have my h1b transferred by taking advantage of 60 days grace period while still in USA? My i94 is still valid for another year.

    B) Is it cap exempt if I return to my home country and try to come here via by transferring my H1 to another employer.

    Please kindly guide me.

    Regards,

    1. administrator
      Kumar

      a. Well, you can…but, as it says, it is up to the discretion of USCIS and usually meant for Layoffs…The ideal thing to do is, you search for employer and have them file your H1B before your last date at current company and then you start working for them based on receipt notice…In this case, you do not use the 60 days grace period and considered like a normal transfer.
      b. Yes, you will be cap exempt.

      1. Abc

        Hi Kumar,
        Further, I’m not planning to search for new employer. How soon should I leave the country after my last day at the company. I mean will I have two weeks Or 10 days to wind up.

        Regards,

  6. Ronak

    Hi,

    I have a valid H1B stamped visa till Sep 2019 and have stayed in US for more than 13 months and returned back to India couple of months back. Its unlikely that my current employer would send me back to US before my visa expiry.

    Can companies be able to transfer my H1B while i am still in india? Also what if i cant find an employer who can transfer my petition before my visa tenure expires? Will i loose out on it? I heard that they would be able to do cap exempt, but m not sure if cap exempt can be processed with expired petition.

  7. Nagesh

    Hi, thanks for the detailed information on this topic. However, it does not say exactly how we can know if USCIS has shortened the 60 days for a particular case. Let’s say person A has lost job and has filled for a transfer with new employer in 20 days. And it took another 20 days for USCIS to respond that person A’s Grace period was only 30 days (assuming that USCIS provides that). So, technically Person A was out of status for 10 days. Is there a way to avoid this? Or is there a way to know ahead how many Grace days USCIS is going to give me?

    1. administrator
      Kumar

      Nagesh,
      You are right, we would not know that until we file the transfer or COS. It is up to USCIS to decide that based on case by case basis. Yes, there is the risk involved as you mentioned…but USCIS has given this grace period with the discretionary clause so that it is not abused to just change jobs by H1B holders and used only in case of dire situations like company going out of business, layoff, etc.

  8. Kumar L

    Can we just resign and automatically get H1B 60 days grace period ? Is it recommended ?
    “So, it is 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.”

    For the above question, ‘not’ is missing in the explanation provided by RedBus team.

    It is a small one n shud be fine even if it is not corrected:)

      1. Suresh Jayabharathi

        Should we apply specifically for the 60 days grace period with USCIS when someone is laid off/ quits job since it looks like it is not automatic? If so, please explain how.

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