H1B 60-day Grace USCIS Rule – Lay off, H4 EAD work (Severance Time)?

H1B 60 days grace period allowed on job loss. H4 EAD can work. Grace is i94 expiry day or 60 days. Join transfer employer on receipt. File H4 COS or F1 to stay.

Written by AM22Tech Team
  AM22Tech Team    Updated 3 Jul, 24


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H1B 60 days Grace Period Meaning: The H1B 60 days grace period means that you will not be considered “out of status” for almost 2 months after your unemployment.

This will give you the opportunity to look for another employment or apply for a visa change of status.

You can stay in the US for 60 days if you lose your H1-B job. 

USCIS allows a grace period of up to 60 days for non-immigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status.

Grace Period Calculator

H1B Grace Period Start Date with Severance Pay can be assumed to start after the severance period is over.

In some states like California, the state law makes it mandatory to give 60 day’s notice period to the employee along with the severance package. An employee is paid a salary but is not expected to work during this period.

Start counting the calendar days from your last day of work. You can use this calculator to find the 60th-day mark.



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Using the app to find your H1B options during the 60-day grace is easy. Just enter:

  • Your last working date
  • Most recent i94 expiry date
  • Severance Paydays (if any). The default value is zero.

Click ‘Calculate’ or ‘Find my Options’ and the app will immediately evaluate your situation and help you with all possible options to maintain legal H1B status in the USA.

Attorney Opinion

As per RN law group attorney Emily Neumann, they have been able to count the severance pay period as a valid legal H1B time. This means that your H1B 60-day period starts after your severance pay period has ended.

Hear what immigration attorney Emily Neumann says starting at time 49:57 in this video chat:



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In this case of a layoff, you will actually get 120 days (60 by state + 60 by USCIS).

On the other hand, Immigration Attorney Cyrus D. Mehta says that the severance pay period or the garden leave (when the person is on the bench without a project but is paid the salary) may or may not push the 60-day grace period start date. He has cited several USCIS rules which point to the USCIS officer’s discretion on the start date.

60-Day Grace Period vs i94 Expiry

You get up to 60 days or until the expiration date of the current I-94, whichever period is shorter.

Example:

Most common action that people take is to file H1B to H4 change of status application if spouse is currently on H1B visa of their own.

The fastest option to get on H4 status is to visit Mexico or Canada and get an H4 visa stamping. You can then re-enter the US using H4 and then immediately apply for H4 EAD.

Other practical options during the grace period are summed up here.

You can use H1B grace time to file:

  • H1B transfer with any other company/employer.
  • File EB-5 Investment green card – This option has become popular after recent big tech layoffs from Google, Facebook and Amazon. Since, the reserved EB5 category dates are current for Indians, you can get the green card EAD quickly in 90-100 days if you file EB5.
  • Apply for a change of status to another visa:
    • H4: If your spouse is on an H1B visa, you can file H4 COS within this 60-day period and stay in the US. You are eligible for H4 EAD if your spouse’s own i140 is approved.
    • F1: If you want to enroll for a study course, you can file F1 visa change of status using form i539 and university’s I-20. Many people go this route using Day-1 CPT. Your H4 dependents will need to file F1 visa along with your F1 visa.
    • F2: If your spouse is on study visa (like F1), you can file F1 dependent visa.
    • B1/B2: USCIS allows changing to B1 or B2 visa in your 60 day grace period. You will need to use the form i539 here as well to change your status and get a new i94.

Prepare to leave the USA

If you are not able to switch to any other visa type, then you can leave the USA to avoid any unlawful stay.

No need to worry as you can come back anytime you are able to find a new H1B sponsor.

Your 6-year H1B max-out time clock stops as soon as you leave the US. Also, if you have i140 approved, you need not worry about the 6-year clock.

Carry Over Un-Used Grace Period days?

The 60-day grace period must be used in one chance. Your unused days cannot be carried over to another grace period.

60 Grace period single block is only available once per the H1B petition’s validity period.

If an H1B extension had been filed and approved with employer A i.e. a new H1B approval validity period has started, then you are eligible for a new 60 days grace period.

H1B Transfer

You can start working with the new H1B Transfer employer as soon as you file a change of employer petition.

The ideal situation would mean that you should have received the USCIS receipt number.

Usually, if you send your H1B application by FedEx and USCIS has received it on or before the 60th day, you are allowed to start work. Check with your employer if they are okay for you to start working.

Transfer after 60 days

You can start working with a new H1B employer even if your H1B transfer was filed on the 60th day and you received the receipt number on the last day.

  • If the petition is going to be filed on the 61st day or you will receive the receipt number on the 61st day or after, you should ideally go out of the USA by your 60th day and plan to re-enter the USA.
  • After the 60th day, you are automatically considered ‘OUT OF STATUS‘ if you have not yet applied for H1B.

Multiple Transfer Filing

You can file multiple H1B transfers during the grace period.

You can also file a transfer with employer A and start working for them to get back into H1B status.

After the 60-day period, you can file another transfer to employer B and join them even when employer A’s transfer is still pending. It is legally possible but the best option would be to first get employer A’s approval.

Old Employer H1B Visa Stamp

You can use the OLD employer’s visa stamp to re-enter the USA if the visa stamp is still valid at any time.

But, you should carry the new H1B transfer approval notice (i797 notice of approval) to be shown at the USA port of entry.

On the other hand, we strongly advise getting the new visa stamped in your passport with a newly approved H1B to avoid issues at the immigration counter.

H4 Extension/Transfer

H4 is dependent on the H1B status.

If the H4’s i94 is expiring in the next 12 months, we suggest filing an H4 transfer along with an H1B transfer too. Otherwise, the H4 transfer can be delayed until the H4 i94 is about to expire (within 6 months of expiry).

FAQ

When does the H1B 60-day Grace period Start?

The grace period will start immediately after the last day of employment.

How to Request H1B 60 days Grace Period?

There is no official USCIS form requesting the H1B 60 grace period. 

You can file a standard H1B transfer (change of employer or change of status) during the 60-day period.

If you want, you can add a cover letter with your application explaining the layoff situation. But, it’s not required officially by USCIS.

Can H4 EAD Spouse Work during H1B 60-day Grace Period?

H4 EAD can work during the H1B grace period.

The H4-EAD is attached to valid H4 status, which in turn is dependent on valid H1B status.

In the 60-day grace period, USCIS allows the H1B worker to maintain the status even if he has lost his job and running no payroll.

This means that H4 status also remains valid for those 60 days. Hence, H4-EAD remains valid and the H4-EAD spouse can keep working for those 60 days as per my understanding.

Can USCIS Deny the H1B 60 Grace period?

USCIS can deny or cancel the H1B 60 grace period.

The USCIS reserves the right to shorten or deny the grace period of an individual on the basis of violation of status, unauthorized employment during the grace period, fraud, or criminal convictions.

Can I QUIT my H1B job to use 60 day grace period?

You can quit your job and then use the H1B grace period.

The official USCIS guidelines do not differentiate between a worker who is terminated and one who resigns himself.

But, they do say H1B job Loss due to circumstances out of the employee’s control. Hence,  we STRONGLY advise against using the grace period by planning and resigning from your job.

Can I Travel Outside the US during 60 days H1B grace period?

You cannot travel outside the USA in a 60-day H1B grace period.

The whole idea of a 60-day grace period is to allow you to stay within the USA after the loss of employment. If you travel out of the USA, the grace period ends right there.

You would need a VALID visa to re-enter the USA again.

Once you leave the USA anytime during 60 day period or after, your H1B transfer application, if not already approved while you were inside the USA, will be approved only with consular processing.

This means you will have to get the Visa stamped in your passport to re-enter the USA.



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Written by AM22Tech Team
  AM22Tech Team