Employees that work under the regulations of the H-1B visa have often run into difficulty if they ever find that their employment is terminated. Fortunately, the Federal Register is implementing a Final Rule that gives certain provisions and an H-1B grace period to those that need some time to find other employment.
Because the H-1B is contingent on the visa holder’s job, losing that employment has, in the past, had serious repercussions on the person’s visa status. H-1B holders would have to either switch to a new employer or leave the country to avoid being considered out of status.
However, as of January 17, 2017, foreign professionals under the H-1B visa will have a 60-day grace period if their employment is terminated. Under this Final Rule, this H-1B grace period can be used to find another employer, change visa status, or leave the country to avoid being “out of status.”
H-1B Grace Period Misconception
If you, like many others, are under the impression that you have a ten-day H-1B grace period after your employment termination, it is likely because of a misunderstanding of the validity period regulation:
“A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.”
The USCIS does grant up to a 10-day grace after an H-1B visa ends (and the employer doesn’t file an extension) for the individual to get their affairs in order and prepare to leave the U.S.
However, this only applies to the natural end of the visa’s validation period. If your employment is terminated before the end of that period, then these 10 days do not apply. Fortunately, you will still be protected by the new 60-day grace period.
As dictated by the terms of the H-1B visa, you have to be working and earning wages from your employer in order to maintain lawful status. If you remain employed but your employer no longer pays your wages, you will have 60 days to regain lawful status before being considered “out of status”.
How Does the H-1B Grace Period Work if You Lose Your Job?
The 60-day grace period means you will be considered to be under a valid status for the duration of the period. According to United States immigration law, you must be under a valid status to be able to request a change of status, extension, and other related privileges. Therefore, the grace period rule gives you the legal ground to change to another nonimmigrant status or find another H-1B employer.
However, it is worth noting that approval for the grace period is not automatic—it is subject to the discretion of the Department of Homeland Security (DHS). According to the rule, the “DHS will determine whether facts and circumstances warrant shortening or refusing the 60-day period on a case-by-case basis.” In other words, you will have to present convincing evidence to the DHS. This will be used by the adjudicating officer to approve it or shorten the 60 days or entirely refuse it.
Possible Grounds for 60-Day Grace Period Refusal
While, in many cases, the grace period is fully granted by the DHS through the USCIS, some circumstances consistent with immigration’s long-existing policies may cause the shortening or refusal of your grace period.
For example, it’s important to not accrue any unlawful presence within the country because that does have serious ramifications. For example, if you have between 180 and 365 days accrued then you are barred from the country for three years if you leave and attempt to return. If your unlawful presence exceeds 365 days, you’re barred for 10 years.
Other grounds for grace period refusal include fraud, unauthorized employment, and criminal charges.
How to Request an H-1B Grace Period Period
Unlike some other immigration waiver programs, there is no specific official form to request an H-1B grace period. One way to do this is to file a standard H-1B transfer or change of status application. You will, however, need to explain the circumstances surrounding your job loss. It is best to present any and all available supporting evidence to back your claims.
How to Maximize the Grace Period
Your grace period starts immediately after your last day of employment. It is important to utilize it judiciously to avoid losing your status and having to leave the United States. The following are some of the things to do during the two months:
Seek Alternate Employment
One way to handle a situation where you have prior knowledge that your current H-1B employer will revoke status or issue layoffs is to change employers because the USCIS will generally approve petitions if you’ve had status and the gap is 30 days or less. That essentially gives you a month to find a new employer and file the new H-1B petition.
If you do find another employer willing to sponsor you for your H-1B, that employer will need to go through all of the steps that the previous employer went through. A Labor Condition Application will need to be obtained and another I-129 will need to be filed. Fortunately, if you have already been counted against the cap with your initial petition, this new petition will not be entered into the lottery, meaning that you can make this transfer at any time, not just on April 1st.
If you have been working with an EAD and were laid off then you have the right to start employment with a new job immediately since a job layoff or termination doesn’t invalidate EADs.
What if the gap exceeds 30 days? Unfortunately, this may decrease the likelihood of approval. However, this isn’t always the case. Your best bet is to consult with an H-1B attorney to learn more about your options and the best course of action to take.
Change to Dependent Status
Another option available to you if you have a spouse also in the U.S on an H-1B visa is to change to dependent status (H-4 or L-2). By doing so you have the opportunity to search for another employer to petition on your behalf.
You do, however, need to demonstrate to the USCIS that your spouse has been working on their H-1B visa, show proof that you were also maintaining your status prior to the termination and a number of other determining factors.
If your H-1B spouse has an I-140 petition pending with the USCIS for a green card, you are currently able to apply for your EAD card under H-4 status. However, the new political administration is heavily scrutinizing this rule and may remove it, meaning that you will need to find other means of employment through H-4 status.
H-1B Grace Period FAQs
Am I Eligible to Use the Grace Period If I Resign from My H-1B Job?
You may be able to use the 60-day grace period if you resign or quit your current job as the rule does not specifically differentiate between job loss, job layoff, resignation, or termination. However, don’t forget that the purpose of the grace period is to help certain nonimmigrant workers who find themselves in dire situations. Therefore, if your case is not convincing enough, the USCIS may deny you the grace period. It is therefore not advisable to just resign your job if there are no circumstances warranting it. We recommend that you speak to your immigration attorney on this.
Can My H-4 Spouse Work During the 60-Day Grace Period?
Yes, your loss of employment does not stop your spouse on H-4 status with a valid EAD from working. It is important to know that your spouse’s H-4 status is attached to your H-1B status and would come to an end at the expiration of your status.
However, the 60-day grace period rule will keep you under a valid status for the time being. This means the H-4 visa also remains valid and the holder can continue working for those 60 days. If the grace period is denied, the H-4 status also comes to an end. Any work done after the denial will be considered unauthorized employment.
Can I Travel Outside the United States During the H-1B 60-Day Grace Period?
No, you cannot travel outside the United States during the grace period. The sole purpose of the grace period is for you to stay in the U.S. and apply for a change of status or find a new employer. If you leave the country during that period, your grace period will end. Traveling out of the U.S. without a valid visa will also undermine your ability to reenter the U.S. after the trip. Therefore, it is best to suspend international travel until you have an approved nonimmigrant visa.
When Can I Start Working With New H-1B Employer?
If you get a new H-1B job before the end of the grace period and you have filed a change of employer petition, you can start working for the new employer even before the petition is approved. However, it is ideal to wait until you have the I-797 notice of receipt as proof that the petition has been received by the USCIS.
What Happens If I Don’t Get a New Job At the End of the Grace Period?
Unfortunately, you will have to leave the U.S. if you are unable to find a new employer after the 60 days given to you. Even if you find a new job and the employer is going to file a petition on the 61st day of the grace period, you will still need to leave. This is because the rule only covers you for 60 days, after that, you are considered to be out of status.
However, the good news is that if you already corresponding with prospective employers, you can still get job offers while outside the United States and then travel back to resume your new job. You will only need to go through consular processing at the U.S. embassy or consulate in your country to apply for a visa. Alternatively, if your current visa stamp is still valid by the time you get a new job, you can use it to seek reentry to the U.S. However, you will need to take along the new H-1B notice of receipt as part of the documents to show at the port of entry.
“There is no automatic 10-day H-1B grace period for terminated employees holding H-1B status, so once the individual is no longer in a lawful nonimmigrant status, he/she usually must depart from the United States.” This grace period is only applicable to 10 days before and after your H-1B visa validation period.
However, under the new Final Rule, there is a 60-day grace period for terminated employees. You may use this time as you choose, including changing your status to a different nonimmigrant visa, though 60 days may not be enough time for most petitions to process without the help of premium processing.
If you’ve recently experienced an employment termination and haven’t yet had your H-1B revoked, you can request a change of status to another nonimmigrant visa while in the process of seeking employment.
If you have additional questions regarding the H-1B grace period misconception or any other H-1B related matters it’s best to consult an immigration attorney who specializes in these cases.