H-1B workers have 60-day grace period after job loss to explore immigration options

United States Citizenship and Immigration Services (USCIS) has an immigrant employee post-termination guide, but it has been moved to its digital archives. The archived material means the information is preserved for reference, but it may be outdated, or USCIS may no longer apply it in the same way.

When a nonimmigrant worker’s employment ends, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorized stay in the United States:

File an application for a change of nonimmigrant status;
File an application for adjustment of status;
File an application for a “compelling circumstances” employment authorization document; or
Be the beneficiary of a nonfrivolous petition to change employer.

If one of these actions occurs within the up to 60-day grace period, the nonimmigrant’s period of authorized stay in the United States can exceed 60 days, even if they lose their previous nonimmigrant status.

If the worker takes no action within the grace period, they and their dependents may then need to depart the United States within 60 days, or when their authorized validity period ends, whichever is shorter.

60-Day Grace Period

The maximum 60-day grace period provides time for a nonimmigrant worker to retain their nonimmigrant status. Alternatively, the 60-grace period provides time for the worker to request a change of status, which may allow the worker to continue their job search from within the United States, even if the grace period and the worker’s current nonimmigrant status expire. This is because a worker may remain in an authorized period of stay based on a timely filed nonfrivolous application to change to a new nonimmigrant status.

The grace period also provides time for certain spouses of nonimmigrant workers to continue their own employment if they have an Employment Authorization Document or are employment-authorized incident to status.

Within the grace period, eligible H-1B nonimmigrant workers may also begin employment again as soon as a new employer properly files a new H-1B petition, rather than waiting for the new petition to be approved.

A worker filing for employment in another classification must wait to begin employment until the new petition is approved, but given the availability of premium processing, the wait for petition adjudication is often less than 15 business days.

Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status in that same classification after the end of employment for up to 60 consecutive calendar days or until the end of the authorized nonimmigrant validity period, whichever is shorter (the “maximum 60-day grace period”).

If the worker is an eligible H-1B nonimmigrant and an employer files a new nonfrivolous H-1B petition on their behalf, the worker can begin work immediately after USCIS receives the petition and continue to maintain their H-1B status.

The maximum 60-day grace period starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid. The up to 60-day grace period may apply to voluntary and involuntary cessation of employment.

The grace period ends upon any departure from the United States. If you depart the United States during the maximum 60-day grace period, you must seek another immigration status that would permit reentry.

If a nonimmigrant worker is outside the United States and terminated with no notice period, or the notice period ends before the worker is able to return, then the grace period does not apply, and the worker must seek another immigration status that would permit reentry. If the worker can, and, in fact, does return to the United States before the notice period ends (that is, before the effective date of termination), the discretionary grace period may apply.

The maximum 60-day grace period only applies to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents). During post-completion OPT, F-1 status is dependent upon employment. Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT.

Students granted a 24-month Science, Technology, Engineering, and Math (STEM) OPT may not accrue an aggregate of more than 150 days of unemployment during a total OPT period, including any post-completion OPT period and any subsequent 24-month extension period.

There are two kinds of job portability, or “porting,” available based on two different kinds of employer petitions:

Eligible H-1B nonimmigrants may begin working for a new employer as soon as the employer properly files a new H-1B petition (Form I-129) requesting to amend or extend H-1B status with USCIS, without waiting for the petition to be approved.

A worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) can transfer the underlying immigrant visa petition to a qualifying new offer of employment in the same or similar occupational classification with the same or a new employer.