Terminated on H-1B, What Are My Options? Answering Questions on the 60-day Grace Period
There has been a lot of news about a possible recession, and multiple companies such as Meta, Twitter, and Amazon have already announced massive layoffs of their employees. For those employees that are on nonimmigrant visas such as H-1B, L-1, etc. this can be a stressful time. However, there are options and things to consider on how to maintain your immigration status.
For those admitted in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, TN, or a dependent thereof status, 8 C.F.R. § 214.1(l)(2) provides a 60-day grace period upon a “cessation of employment.” This grace period states that the nonimmigrant shall not be considered to have failed to maintain status solely on the basis of the cessation of employment. During this grace period, a nonimmigrant can change status to another nonimmigrant status or seek another employer in the current classification, for example a new H-1B employer. It is worth noting that this grace period is discretionary, but in the event of layoffs and terminations it is rarely not provided.
Below are some common questions are office receives following a termination and around the 60-day grace period that those in this situation may find helpful. For purposes of brevity, this article will mostly refer to H-1B, but is applicable to the above visa categories.
- 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. Further, the grace period will be shortened if your I-94 expires within the 60-days.
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.
- 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
- 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
- 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 December 4 that you will be terminated in 2 weeks on December 18, your 60-day grace period will start December 18. Keep in mind that if you receive a severance, the time period you are receiving this does not count towards tolling your 60-day grace period.
- 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.
- I was terminated on November 4, my I-94 is still valid, but expires December 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 December 4.
- 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.
- 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 November 6, 2022 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, 2025 and in January 2023 Company B has 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 November, 2022 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.
- 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.
- 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.
- 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.
- My company is in the middle of my I-140 process, and they will not be continuing it once I am terminated. Can I take the approved PERM over to another employer to file an I-140?
No. the PERM process is limited to just the employer that filed. Your new employer will have to start the process over.
- I have an approved I-140 with the employer I was terminated from, can I use that for anything with my new employer?
It depends. The good thing is your priority date locks the moment hte I-140 is approved. Outside of that, if your I-140 has been approved for more than 6 months, you can get all the NIV benefits of the I-140 even if it is withdrawn, so you can get the extensions beyond 6 years and H-4 EAD.
- I only used up 3 years of H-1B, my green card process has not started, can I return to my home country now and come back to the USA after 5 years without being subject to H-1B Cap?
Yes, the regulations changed on this in 2017. Once you are counted against the H-1B cap, you are counted forever unless your cap case is revoked due to fraud or misrepresentation. So theoretically, you can come back in 1 year or 50 years, and still be counted against the cap based on today’s regulation.
Being laid off at any time can be stressful, especially if you are on a nonimmigrant visa. Thankfully, the 60-day grace period provides some relief you can use. If you have questions about your situation when laid off, please contact a qualified employment-based immigration attorney to discuss your case.
By: Steven Brown
Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.