1. What are the basic requirements of the 60-day grace period?
To qualify for the 60-day grace period, you would need to have a valid I-94 and a “cessation” or termination of employment.
Note, if you are transferring to a new company (Company B) by your own choice and Company B files the transfer and prepares to onboard you prior to your resignation from Company A, you would not need to utilize the 60-day grace period as there is no failure to maintain status.
2. So what does the 60 day-grace period regulation actually mean?
The 60-day grace period was a regulatory creation to provide better retention of high-skilled nonimmigrant workers. Prior to the 60-day grace period creation, if an H-1B employee was terminated on a Monday and couldn’t leave the United States until Saturday that employee would have been deemed to violate their nonimmigrant status immediately upon termination and there was no time frame to depart the US to prevent this.
With the creation of the 60-day grace period, there is an opportunity for the employee to save and maintain their status. If the employee has a valid I-94 they can seek to have a petitioning company file a new H-1B for them or seek a new nonimmigrant status within the 60-day window. This will be viewed as maintaining status.
3. Is the 60-day grace period a guarantee?
No! The 60-day grace period is discretionary, and based on the introductory language of the regulation, DHS can “determine whether facts and circumstances may warrant shortening or refusing the 60-day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60 days following cessation of employment and grant a discretionary extension of status or a change of status to another nonimmigrant classification.”
While USCIS’ authority is discretionary, there has been a high success rate with 60-day grace period requests. While nothing is guaranteed, if you have a valid I-94 and there is a cessation of employment, you should be able to get an extension or change of status approved based on the 60-day grace period.
4. When does my 60-day grace period start?
The 60-day grace period begins on the date the H-1B beneficiary receives notice they are terminated and stops working pursuant to this termination.
For example, if your employer notifies you on May 4 that you will be terminated in 2 weeks on May 18, your 60-day grace period will start May 18.
5. My I-94 is expired, can I utilize the 60-day grace period?
No! In order to use the 60-day grace period, you have to otherwise be maintaining nonimmigrant status. This means that you have to have a valid I-94 and, other than the termination of you employment, you cannot have violated your nonimmigrant status.
6. I was terminated on May 4, my I-94 is still valid, but expires June 4, can I use the full 60-day grace period?
No! You must have a valid I-94 for the duration of the 60-day grace period. In the above scenario, your grace-period would end on June 4.
7. Can I change status, for example to H-4, during this 60-day grace period?
Yes! As the regulation considers you as maintaining status during this 60-day grace period, you can change status. Please note, that you will still have to prove your maintenance of status and may receive an RFE asking about your status if you have not submitted sufficient proof initially.
8. How many times can I use the 60-day grace period? My I-94 is still valid, so can I use the 60-day grace period as much as I need?
No! The 60-day grace period can only be used “once during each authorized validity period.” This means once per H-1B approval.
For example: If you have an H-1B with Company A valid until July 6, 2020 and get laid off, you can use the 60-day grace period to transfer to Company B. Now, let’s say Company B gets approved until May 4, 2023 and in September 2020 they have to lay you off. You can now use the 60-day grace period again with this new validity period with Company B because Company B’s H-1B was approved
Alternatively, if you have an H-1B with Company A valid until July 6, 2020 and you get terminated, and you file a transfer to Company B during your 60-day grace period, but the Company B transfer was denied, you cannot use a second 60-day grace period based on Company A’s approval. You do not qualify for a 60-day grace period for Company B as there was no “authorized validity period” since Company B’s petition was denied.
9. My spouse is on H-4 and is working pursuant to the H-4 EAD. I was just terminated from my employer and in the 60-day grace period, can my spouse continue to work pursuant to the EAD?
Most likely yes! This is a topic which has caused a lot of debate amongst attorneys with many different viewpoints as to both the authorization and the risks involved.
Presuming a new H-1B petition is filed on behalf of the H-1B employee during the 60-day grace period, and presuming USCIS uses their discretion and grants the extension of stay, it is viewed as if the H-1B employee was maintaining status during the entirety of the grace period. Given this, the H-4 spouse was authorized to work as the H-1B spouse was viewed to have maintained status. In light of this analysis, it is likely that the H-4 spouse can work during the grace period.
This however is not without risk. If the H-1B extension of stay is denied because USCIS determines that they should not utilize the discretion given to them, the H-1B spouse will have been determined to have failed to maintain status. Given this, the H-4 spouse will be viewed to not have maintained status and thus any work during that 60-day grace period would be viewed as unauthorized. The determination that the H-1B spouse maintained status pursuant to the 60-day grace period is discretionary and will not be determined until the H-1B is adjudicated. This creates a risk for the H-4 spouse if they do choose to work during the grace period.
10. I have a valid I-94 with Company A, I filed a transfer to Company B, but it was denied. I transferred to Company B without being terminated so I haven’t used my 60-day grace period, what options do I have at this time?
You have a few options at this time.
Option 1: As always, you can depart the United States and look for a company that will file a new H-1B. Alternatively, you can depart and re-enter the United States on a different nonimmigrant status.
Option 2: You can return to Company A. If Company A is willing to continue your employment, you can return back to Company A and continue working. Assuming all terms and conditions of your employment remain the same, you can do this without filing an amendment. No transfer will be needed if Company A’s application has not been withdrawn.
Option 3: There is a possible option of filing a new transfer to Company B and arguing that you qualify for the 60-day grace period based on the Company B denial. This option requires a full analysis of your case, and the facts involved, and you should consult your immigration lawyer to determine if this option is best for your case.
11. I was terminated from Company A on June 1 (60-day grace period ends July 31) and Company B filed a petition for me on July 15, but I do not want to join Company B until August 15 (after the 60-day grace period ends). Is that okay?
While generally there is not a specific timeline to join a new company when filing a transfer, we would advise joining Company B as soon as you are able to avoid creating a maintenance of status issue. Since the purpose of the 60 day grace period is to allow a Beneficiary to be considered to have maintained status during the 60 day period and the goal of increasing job portability, it is possible USCIS would view not joining a new employer until after the 60 day grace period as a failure to maintain status.
By: Steven Brown
Steven Brown is an attorney in the firm’s H-1B Department and represents our business clients throughout the entire H-1B, H-4, and H-4 EAD process. Additionally, Steven works with clients with Department of Labor Compliance included assistance with wage and hours investigations. Steven prides himself in being able to provide his clients with creative solutions to complex immigration problems.