Laid-Off on H-1B? How to Handle the Strict 60-Day Grace Period and Keep Your US Visa Status

Being laid off is stressful for anyone — and even more so for an individual who is on an H-1B visa. The H-1B workers don’t have the luxury of time, as do U.S. citizens or green card holders. You need to make a decision within 60 days (or until you have an expired I-94) or be mandatorily removed from the United States. You must make a decision within 60 days (or until your I-94 expires, whichever is sooner) or you will be removed from the United States automatically. If you miss it, you could be sent out of the country.

It is important you know and do this.

Understanding the H-1B Unemployment Grace Period

The clock is about to run when you are laid off on H-1B, but not the end of a severance period. USCIS rules give a grace period of 60 days for workers in H-1B status who are laid off to enable them to get into a new legal status. This rule applies once only for every validity period, meaning that all the days count.

Your Options After an H-1B Layoff

1. Securing a New H-1B Employer (Best Option)

The easiest route with regard to H-1B layoff guidelines is to discover a new sponsoring employer promptly.

• Cap-Exempt Transfer: New H-1B petitions are typically Cap-Exempt, and hence, there is no lottery wait time.
• The “Bridge” Rule: USCIS will allow you to remain in the US legally until they make a decision on your petition under the “Bridge” Rule, as long as you file it with USCIS within the 60-day deadline. Pre-approval is not necessary. It is the foundation of the entire visa H-1B transfer process and the best safeguard.

2. Submit a Change of Status (COS)

So if you’re nearing the conclusion of your grace period and you don’t have a new employer yet, it is a good idea to file a Change of Status before the grace period ends and you are no longer in a “period of authorised stay”.

• B-2 Visitor Visa: You may stay legally for job seeking and/or to wrap up, but cannot work.
• H-4 Visa: If the spouse is an H-1B or L-1, an H-4 EAD could be available to work in certain situations.
• F-1 Student Visa: If you have an academic program you want to attend, then this is a viable option to continue to have a valid US visa even after being laid off.

3. Leverage an Approved I-140

Under AC21, those who are in the queue with an approved I-140 immigrant petition may enjoy some extra options. This is a complicated area of immigration law – it is best to consult an immigration attorney as soon as possible to understand the consequences of H-1B layoffs in your particular case.

Critical Mistakes to Avoid

Getting laid off is a difficult enough situation to face, but being laid off on an H-1B is even worse. These errors can cause a lot worse:

• Don’t wait and see. The grace period starts on the first day that your employer stops paying your payroll, not the day you feel ready to take action.
• Don’t travel internationally. Although you may have a valid H-1B visa stamp in your passport, it is quite risky to travel to another country while you are not working. If you don’t have an active sponsoring employer, then you will not be allowed to re-enter the country at the border by CBP.
• Don’t presume that if you are severing, you remain in a status. Severance pay is not considered employment for immigration.

Immediate Steps to Take Today

These are priorities for action of H-1B workers who are at risk of being laid off:

1. Document everything. Collect your termination letter, ending paychecks, layoff notice and I-94 record right away.
2. Discuss with an immigration lawyer. A professional attorney will be able to help you prevent late filing dates as well as incorrect filing.
3. Inform H-4 dependent(s). You need to plan for or exit from the transition together with any family members on H-4 visas who are directly impacted.
4. Begin your job search ASAP. The sooner you find a new sponsoring employer, the sooner you will have more options.

The Bottom Line

For a foreign national, it is one of the most stressful immigration situations in the US to be laid off on an H-1B — but it can be handled in a timely and informed manner. The 60-day grace period for H-1B employees is a lifeline – contingent, however, on using it the right way. No matter what you choose to do, this is an H-1B new employer transfer, change of status, or whatever; the important thing is that you get it done now and hire a competent immigration attorney to preserve your status and your future in the U.S.

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