Layoffs and H1B 60-Day Grace Period Rule
Several companies are announcing layoffs and the employment termination poses unique challenges to employees on H1B visa. In this article we address some of the questions related to 60-day grace period and ways to remain in United States without violating the nonimmigrant status.
Table of Contents
- 1. What is H1B 60 day grace period rule?
- 2. When does the grace period starts?
- 3. Will I be considered out of status during the H1B grace period?
- 4. Can I work during the grace period?
- 5. Can I start a business during the grace period?
- 6. Can the 60-day grace period be shortened or refused by DHS?
- 7. Can I apply for change of status during the grace period?
- 8. If h1b transfer is applied with a new employer during the grace period, can I start work immediately with the new employer?
- 9. If my spouse is on H1B, can I apply for Change of status to H4 during the grace period?
- 10. Do I need to apply for the H1B lottery If my status is changed from H1B to H4 and want to get H1B status again while on H4 status?
WHAT IS H1B 60-DAY GRACE PERIOD RULE?
Whenever a H-1B employee’s employment ends, to enhance the job portability and flexibility of the H-1B employee, DHS may authorize a grace period for up to 60 consecutive days, or until the existing authorized validity period (I-94 expiration date) ends, whichever is shorter. The grace period allows the H-1B employees to remain in the United States without violating their status and giving them the time to explore new employment opportunities or change their status to another nonimmigrant visa classification.
WHEN DOES THE GRACE PERIOD STARTS?
The grace period starts at the termination/cessation of employment.
WILL I BE CONSIDERED OUT OF STATUS DURING THE H1B GRACE PERIOD?
No. During the grace period you will be in status and not considered violating your status.
CAN I WORK DURING THE GRACE PERIOD?
No. you are not authorized to work during the grace period.
CAN I START A BUSINESS DURING THE GRACE PERIOD?
No. you are not authorized to start a business during the grace period.
CAN THE 60-DAY GRACE PERIOD BE SHORTENED OR REFUSED BY DHS?
Yes. DHS has discretion, on case-by-case basis, to shorten or refuse the grace period and applies it in scenarios such as violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions etc.
CAN I APPLY FOR CHANGE OF STATUS DURING THE GRACE PERIOD?
Yes, you can apply for change of status (including to B-1/B-2) during the grace period.
IF H1B TRANSFER IS APPLIED WITH A NEW EMPLOYER DURING THE GRACE PERIOD, CAN I START WORK IMMEDIATELY WITH THE NEW EMPLOYER?
You have to wait until you get the H1B receipt for the H1B transfer petition. So you need to have enough time in the grace period so that the new employer can complete LCA certification and get the receipt for the H1B transfer petition. The whole process with the new employer may take 2-3 weeks.
IF MY SPOUSE IS ON H1B, CAN I APPLY FOR CHANGE OF STATUS TO H4 DURING THE GRACE PERIOD?
Yes, you can apply for Change of Status to H4. In certain circumstances, you can apply for H4-EAD as well, which upon approval authorizes you to work in the United States.
DO I NEED TO APPLY FOR THE H1B LOTTERY IF MY STATUS IS CHANGED FROM H1B TO H4 AND WANT TO GET H1B STATUS AGAIN WHILE ON H4 STATUS?
You may not need to enter the H-1B lottery if you have unused 6 year term of H-1B or approved I-140.
If you have questions on the 60-day grace period, simply give us a call today at (408) 752-5436 to schedule a consultation with attorney Kamala. We accept major legal insurance plans like Hyatt or MetLife Legal Plans.
