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H1B Grace Period after Layoffs - Approved I-140, Severance Pay
If H1B or L1 visa holders are laid off, fired, or terminated from their job, either voluntarily or involuntarily or due to massive job cuts, USCIS immigration policy allows a consecutive 60 calendar days grace period, assuming that you have a valid I-94 document.
There are several ifs and buts when it comes to finding a loophole in this situation, as no one wants to leave the country unplanned. But the formula is simple, the H1B maximum grace period is 60 days, and it 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 severance scenario might vary a little which I will explain shortly.
Do not trust anyone if someone is giving you any dissimilar information, except a lawyer or the USCIS website itself. Remember that you can always look for a sponsor from your home country and come back anytime, instead of jeopardizing your whole situation. Going back to your home country is not the end of the world.
According to U.S. immigration law, H1B workers are permitted a 60-day grace period after the termination of their employment to either find a new job and transfer their H1B visa to the new employer, or you can file a change of status to H4, L2, B1/B2, or F1 visa, the situation would vary case to case, or depart to your home country.
Table of Contents: H1B Grace Period
A few of my close friends who are on H1B and L1 visas have personally gone through this situation hence sharing this experience with everyone. Please note that I am not a lawyer and my suggestion is purely based on people I know, friends, and colleagues.
Related: B1/B2 visa for parents
I see several discussions on social platforms discussing the H1B grace period due to the past COVID situation or due to massive job cuts including both types of people who have either pending or approved I-140.
In any scenario, maintaining H1B status should be your foremost priority, and do not listen to rumors or people who try to sell you something digitally via Tweets or posts, or some news that is not announced by USCIS. I am sharing what I have seen so far, hopefully, you all find this blog helpful.
01. What If I-94 expires first?
If your I-94 is expiring soon, that means your permitted stay in the United States is about to come to an end and if your I-94 document is expiring within those 60 days' grace period, then the I-94 end date will be considered as your last day in the United States and not the 60 days grace period, in short, whichever comes first either I-94 expiry date or 60 days grace period end date will be considered your last day.
Related: How to expedite GC processing
You should have a valid I-94 status even during the 60-day grace period. I-94 defines your maximum permitted length of stay in the US.
Example: If you are fired and you have an I-94 expiring within the next 60 days then you are not allowed to have 60 days of the grace period. Before the I-94 expiry date if you can not find a new employer then you have to travel back to your home country or file a change of status. The same grace period applies to H1B dependents as well.
02. What happens to H4 EAD?
H4 EAD can work during the H1B grace period but if the primary H1B visa holder can not find a new job or sponsor within the 60 days grace period then H4 EAD can not work as H4 EAD is valid only when the H1B visa holder maintains a valid H1B status. After 60 days of the grace period, the H1B visa holder goes "out of status", thus H4 dependents as well.
Related: Apply for H4 EAD
03. USCIS 60-day rule
Before Jan 2017, there was no such grace period for H1B and L1 visa holders. So during that time if you lose your job then you had no other option but to travel back to your home country within 10 calendar days.
But later USCIS announced a 60-day grace period if certain non-immigrant visa holders like H1B, or L1 lose their jobs due to layoffs or job cuts, or any other unforeseen reasons before the actual petition ends. This 60-day stay helps H1B visa holders to look for a new job. This grace period is not valid if your petition is already coming to an end.
According to USCIS: 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 following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (See 8 CFR 214.1(l)(2)). Read more.
04. H1B Grace Period Carryover
60 days H1B grace period does not carry forward which means if you are using the grace period now then you will not have any grace period left on the present petition whether you use the complete 60 days or a portion of it. Usually, this never happens, in most cases either individuals find a new employer within the grace period or travel back to their home country.
This case would happen, for example, when you join back the same employer who was firing you within the grace period, and for some reason, they decided to fire you again. Very rare but you never know.
Related: Renew your Indian passport in the US
If your new employer files an H1B transfer and gets your petition approved then you get another 60-day grace period on your new petition.
05. H1B Grace Period with Severance Pay
In a few states, companies provide severance packages but it's not mandatory in all states. For example, In California, it's mandatory to give 60 days advance written notice in case of mass layoffs and terminations. You can refer to the Department of Labor WARN Act here.
However, there is no such hard rule for employers to provide a severance package to an employee upon the termination of employment. You can refer to the Department of Labor Severance Pay details here.
Most of the Bay Area giants like Google, Microsoft, Amazon, etc provided a 60-day notification period, or sometimes even more during recent year layoffs. Read more here. The notification period is considered separate from the H1B grace period. Read the following sample FAQ from the USCIS website.
So, it depends upon your employer what severance package they provide to you, and most importantly, on paper, which date is considered as your last day of employment.
According to USCIS, after the end of your employment which is your last day at work, your 60-day grace period starts. So let's say you are notified on Jan 31st, 2023 and you are getting a severance package till March 31st, 2023, your employment end date will be considered as March 31st, 2023 and you get another 60 days which will be your H1B grace period.
Instead of presuming your last date of employment, it's recommended to talk to your employer and clarify what will be your employment end date, and whether there will be an additional H1B 60-day grace period on top of it. So depending upon your severance package offer, you might or might not qualify for an additional 60-day grace period.
Like following example with Google's severance package which consisted of a 60-day notification period with pay, so you got an additional 60 days. You will have 120 days to prepare and find a new job.
Again your foremost priority should be maintaining a valid H1B status, so do not take any decision until you are fully assured. Remember that you can always travel back to your home country and travel back again once you find a sponsor. That is a much safer bet.
Also, there is no specific definition for a severance package, it depends upon the offer letter agreement between you and the employer which you signed before joining. It would be smart to get severance terms and conditions added before you sign any offer letter. You can read about this in detail in the following blog.
Related: Severance package explained
Google severance package example
In the US, Google laid off 12K employees in Jan 2023 and this is the severance package Google offered:
We will pay employees during the full notification period (minimum 60 days).
We will also offer a severance package starting at 16 weeks' salary plus 2 weeks for every additional year at Google, and accelerate at least 16 weeks of GSU (Google Stock Units) vesting.
We will pay 2022 bonuses and the remaining vacation time.
We will be offering 6 months of healthcare, job placement services, and immigration support for those affected.
Outside the US, we will support employees in line with local practices.
With Google's severance package, Google offered 60 days (minimum) notification period, so you are on the payroll for the next 2 months which was until March 31, 2023, and the USCIS 60 days grace period will start after the last working day. So you would have enough time (120 days) to look for a new job in this case.
Related: Fastest way to get H4 EAD
06. H1B Grace Period with an Approved I-140
In short, there is no major difference, it's still 60 day grace period according to USCIS rule but there is some benefit if your petition is approved over 180 days. Not in the grace period though that still depends upon the severance package offer discussed above. In either case, you have to find a new employer within 60 days starting from the last day of your employment.
A. I-140 is Pending
In this case, you are in the same boat as a normal H1B visa individual. If you don't have much time left on H1B (6 years maximum period) then you have to go through the whole process again, starting from the H1B lottery.
If you still have a few years left on your H1B then you can find a new job within 60 days grace period, or file a change of status, if not, go back to your home country and find a new job and get the petition approved, and come back again. Make sure you get the I-140 initiated by your new employer so that you can extend your H1B beyond 6 years.
B. I-140 is Approved but < 180 days
If your I-140 petition is approved for less than 180 days, technically, your employer has still the right to revoke your approved I-140, that's the reason H1B visa holders find it safe to switch jobs after 6 months of I-140 approval.
Related: OCI application for minor
If your employer is withdrawing the I-140, you will get 60 calendar days which USCIS offers to find a new employer, or, you may have to travel back to your home country.
When you find a new employer, they will have to file your petition again and you can join as soon as you have the receipt number. Your new employer will have to file your I-140 again as the old I-140 was withdrawn before 180 days.
But usually, employers do not revoke the I-140 so you still get 60 calendar days to find a new employer. It's recommended to talk to your employer/or a lawyer in this case.
C. I-140 is Approved and > 180 days
If an I-140 petition has been approved for more than 180 days, then your employer can not revoke your I-140. In this case, you can extend your H1B visa unlimited times, extended for 3 years each time. You will be exempt from the H1B lottery.
You would still need to find a new employer within the grace period of 60 days. Your priority date remains the same as your I-140 but you will need an updated I-140 with your new employer when the priority date comes closer and you have to file an adjustment of status, form I-485.
Related: Current GC priority dates for India
07. Options after H1B, L1 Layoffs
This could vary from case to case but these are options in the best order. If you are laid off either you have to find a new job, change your status, or go back to your home country.
Start looking for a new employer.
If you find a new employer within 60 days, you can start work on the receipt number.
If not, you can always fly back to your home country and look for a new sponsor from there.
If you do not go back to India, then you need to file a change of status.
You can file a change of status yourself, or hire a lawyer.
If you have the option to file H4, J2, or L2 dependent visas, go for this option. H4, J2, and L2 dependent visas are stronger cases than B1/B2 or F1 visas.
If not, file a change of status to a B1/B2 tourist visa. Read more.
But think about option 3, or option 8, instead of staying in the United States and wasting all your savings.
Switching to a B1/B2 tourist visa would buy you 6+ months minimum. So after you apply you won't accrue unlawful status.
Find a new job, file a change of status back to H1B, and withdraw the previous COS request. Read more.
Go for higher studies and file a change of status to an F1 visa.
Remember that going back to your home country is always recommended if you can't find a new job in 60 days. Again, please note I am not a lawyer and I am sharing this based on my personal experience.
Related: H1B to J2 change of status
08. I-140 EAD under Compelling Circumstances
It's very tough to say what USCIS considers as "compelling circumstances", you can find more details about it here. You may be eligible to file EAD, form I-765, under compelling circumstances within the grace period of 60 days. According to USCIS:
Examples of compelling circumstances that may be considered for an Employment Authorization Document (EAD) include but are not limited to:
Unexpected illness or medical condition of the primary applicant or a close family member
Natural disasters, such as a hurricane, earthquake, or flood that significantly disrupts a business
Significant disruption to the employer, going bankrupt, or a similar situation
Unexpected harm or violence in the home country, making it unsafe for the applicant to return
09. H1-B Grace Period 180 Days Extension USCIS
As of March 10, 2023, according to USCIS latest update on options for non-immigrant workers following termination of employment grace period is still 60 days. Several people are claiming it has been extended to 180 days but it's not the case yet. You can read the USCIS update as of March 10, 2023, in more detail here.
There might be a possibility that USCIS extends this grace period for impacted employees due to layoffs, but we don't know yet. If there is some extension, USCIS will post it on its website.
FAQs on H1B Grace Period
Can I travel during the grace period?
Yes, you can travel during the grace period but you would need another immigration status to re-enter the United States. So it's not recommended to travel during the grace period.
When does the H1B grace period start?
The start date for the H1B grace period is typically determined based on the last day for which a salary or wage is paid whether you leave the job voluntarily or involuntarily.
How does the severance pay affect the H1B grace period?
You get a 60-day grace period from the date of termination of employment. It's recommended to check with your employer what is your official employment end date and you may count 60 calendar days from there. If your severance package offers you an extra notification period, that's a bonus for you.
When can I start working on the grace period?
As soon as your new petition is filed by your new employer and you have your receipt number, you can start work for the new employer. You don't need to wait for the final approval to start work.
How to request an H1B 60-day grace period?
Automatically, you get a 60 calendar days grace period by USCIS and you don't need to apply for it. But when you file a change of status or file a petition you need to mention this in your cover letter. Read the sample FAQ from the USCIS website.
What is the latest USCIS news on the H1B grace period of 180 days?
It's important to know that the talk about extending the grace period for H1B visa holders from 60 to 180 days is not true. The US Citizenship and Immigration Services (USCIS) hasn't made any changes, and the grace period is still 60 days. You can read it on the USCIS website or download it from below.
How many times can I utilize the H-1B grace period?
If you have a valid I-94 and a newly approved I-797 petition, the H-1B grace period is 60 days. This grace period does not carry forward. Once you find a new employer and obtain a fresh petition, the clock is reset, allowing you to utilize another 60-day grace period if needed.
What is the start date of the H1B grace period?
The H-1B grace period starts from the date of termination, usually the last day for which you receive payment. The severance notification period can be considered separately if you are paid during that notice period.
Next: Change of Status to B2
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