A layoff is stressful anywhere but on an H-1B visa, it is also a countdown. Right now that countdown runs 60 days, enough time to find another sponsor, switch to another status or wind up a life built over years. A DHS proposal sent to the White House Office of Information and Regulatory Affairs (OIRA) for review could take those 60 days away.
The US Department of Homeland Security (DHS) is proposing to eliminate the discretionary 60-day grace period. The proposal, listed as RIN 1615-AD22, is under review by the OIRA.
An H-1B visa is a temporary, employer-sponsored US non-immigrant work visa. It allows US companies to hire foreign nationals for specialised professional jobs.
For Indian professionals, the impact could go beyond finding another job. If the proposal takes effect, a layoff could leave workers with much less time to protect their immigration status, particularly those who do not have another status that allows them to remain in the US.
Speaking to Financial Express Digital, immigration expert Mithi Jaiswal says the biggest impact would be the loss of the regulatory buffer that H-1B workers currently have after a job loss.
“If the grace period is eliminated, a worker could potentially lose H-1B status much sooner after employment ends,” Jaiswal says.
What should H-1B workers do immediately after losing a job?
The first step is to establish the exact last day of employment. The worker should then check their Form I-94 and H-1B approval documents and consult an immigration professional without delay.
An I-94 is an official arrival and departure record issued by US Customs and Border Protection. It records the date until which a foreign visitor is authorised to stay in the US.
Under the current system, the 60-day period provides time to search for another qualifying employer, explore another immigration status or make arrangements to leave the US.
If that period is removed, Jaiswal advises workers not to wait to see whether another job turns up. The employment search and immigration assessment should happen at the same time.
Workers should also keep personal copies of their immigration and employment records, including:
- Form I-94
- H-1B approval notices
- Recent pay statements
- Employment records
- Previous immigration filings
- Green-card documents, where applicable
Can an H-1B worker move to another employer?
Finding another qualifying employer would remain one of the main options for an H-1B worker who loses a job. An eligible worker may be able to move to another H-1B employer through the applicable transfer process.
But a job offer does not by itself resolve the immigration issue. The worker also needs to understand when the new employer can file the required H-1B paperwork and whether the worker can maintain lawful status during the transition.
That becomes even more important if the existing 60-day grace period disappears.
Does an approved I-140 protect an H-1B worker?
Not automatically. An I-140 is an immigrant petition filed by a US employer for a foreign worker who seeks an employment-based green card. Approval of an I-140 shows that the worker has an approved employment-based immigrant petition, but it does not by itself give the worker a separate non-immigrant status.
An approved I-140 is an important step in the employment-based green-card process, but it does not by itself give an H-1B worker an independent nonimmigrant status.
Jaiswal says workers should not assume that an approved I-140 alone allows them to remain in the US after losing H-1B employment.
The worker would still need to determine whether another immigration status or legal basis is available.
What happens to H-1B workers with a pending I-485?
The situation can be different for someone with a properly filed and pending I-485 adjustment-of-status application. Form I-485 is an application that allows an eligible foreign national already in the US to apply to become a lawful permanent resident, or green-card holder, without leaving the country.
Jaiswal says a pending adjustment application may put the worker in a different position because it can provide a separate basis for remaining in the US while the application is pending.
In some cases, the worker may also have an Employment Authorization Document (EAD) that provides work authorisation independent of the H-1B employer.
However, having a green-card application does not automatically protect every H-1B worker after a layoff. The details of the individual case matter.
Workers with approved I-140s or pending I-485 applications should therefore have their cases reviewed before making decisions after a termination.
What happens to H-4 dependants?
The impact can extend to the worker’s family. An H-4 visa is a dependent non-immigrant visa for the spouse and unmarried children of certain H-1B visa holders.
H-4 status is generally linked to the principal H-1B worker’s status. A change in the H-1B worker’s immigration status can therefore have consequences for H-4 spouses and children.
The exact outcome depends on the family’s circumstances, including the validity of H-4 status, pending applications and, where applicable, H-4 employment authorisation.
For H-1B families, a layoff contingency plan should therefore cover the spouse and children as well, says Jaiswal.
What happens if an H-1B worker is already within 60-day grace period?
This could become one of the most important questions if DHS finalises the proposed change. For example, an H-1B worker could lose their job before the final rule takes effect but still be within the existing 60-day period when the new rule becomes effective.
Would that worker retain the existing protection, or would the new rules apply immediately?
There is no definitive answer yet because the final regulatory language and any transition provisions will determine how DHS handles such cases. “It is too early to give a definitive answer,” Jaiswal says.
She also cautions workers against assuming that a new restriction would automatically apply to people whose employment ended before the rule took effect. “Until the final rule is published, workers should not assume that the new restriction will apply retroactively,” she says.
What should Indian H-1B workers do now?
Jaiswal’s advice is to prepare before a termination happens.
Keep immigration records: Maintain personal copies of your I-94, H-1B approval notices, employment records, pay statements and previous filings.
Know your dates: Keep track of your I-94 validity and H-1B approval period rather than relying entirely on your employer.
Review your green-card case: If you have an approved I-140 or pending I-485, understand what it means for your ability to remain and work in the US.
Check your family’s status: Understand how a change in H-1B status could affect H-4 dependants.
Have a layoff plan: Know which immigration professional you would contact and keep the relevant documents accessible.
Act quickly: If employment ends, start exploring immigration and employment options immediately rather than waiting until the end of the available window.
What happens next?
For now, the existing 60-day H-1B grace period remains in place. The proposed DHS change has not yet become the final rule. Its final language, effective date and any transition provisions will determine how it affects current and future H-1B workers.
But for Indian professionals, the practical lesson is that a job loss could become a much more time-sensitive immigration problem if the current regulatory buffer disappears, says Jaiswal.
Workers should therefore know their status, keep their documents ready and understand their potential options before a layoff happens.
Disclaimer: This article is for general informational purposes only. US immigration laws, regulations and government policies are subject to change. Readers should verify the latest information with official US government sources and consult immigration attorneys before making any immigration-related decision.