The 60-Day Grace Period

We often get questions from recently laid-off individuals about the 60-day grace period.

The 60-day grace period provision was put into place by the United States Citizenship and Immigration Service (USCIS) to provide nonimmigrant workers whose employment ends to have time to secure other employment or immigration status in the United States.

Nonimmigrant workers are granted a 60-day grace period by the USCIS when their employment ends either voluntarily or involuntarily.  The grace period is 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.

Persons in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications (and their dependents) are eligible for this grace period.

It is important to note that the grace period begins on the day after the individual’s formal last day of employment.  During the grace period, the worker’s status will be considered maintained but they cannot work.  The employment period is not extended by severance payments.

Individuals may use the 60-day grace period to seek a new employer who will sponsor them in the same or different status.  For individuals on H-1B status, the portability rules apply.  USCIS permits foreign individuals who are currently in H-1B status to begin working for a new employer as soon as the new employer properly files a new H-1B petition, and it is received by USCIS.

If an individual fails to file a change of status application or find a new employer who can file a change of employer petition in a timely manner when the grace period ends, it may be necessary for the individual and their dependents to depart the United States

Here are a few scenarios which demonstrate how the 60-day grace period works.

Scenario 1:

John works for Company A on an H-1B visa.  Company A lays off John and his last employment day is on November 1.  His 60-day grace period begins on November 2 and ends on December 31.    Fortunately, John finds a new position quickly with Company B, who files a timely H-1B visa transfer petition prior to December 31.  John joins Company B after the petition is received or approved by USCIS.  He is in valid H-1B status to work for Company B.

Scenario 2:

John works for Company A on an H-1B visa.  Company A lays off John and his last employment day is on November 1.  His 60-day grace period begins on November 2 and ends on December 31.    Unfortunately, John cannot find an employer within the 60-day grace period.  What can he do?  If John wants to file for a change of status to a different non-immigrant status and it’s filed before the 6-day grace period ends, he can remain in the U.S. until the adjudication of that case.  Otherwise, he would fall out of status from an immigration standpoint.

Scenario 3:

John works for Company A on an H-1B visa.  Company A lays off John and his last employment day is on November 1.  His 60-day grace period begins on November 2 and ends on December 31.    Fortunately, John finds a new position quickly with Company B, who files a timely H-1B visa transfer petition prior to December 31.  John joins Company B on December 18 after the petition was approved by the USCIS.  To John’s surprise, Company B has a layoff on January 2, and John is one of the employees to be laid off.  John is permitted another 60-day grace period based on the approved petition granted to Company B.  If John can find another employer who can file an H-1B petition within the 60-day grace period, or he files for a change of status to another non-immigrant status, he can remain in the U.S.

Scenario 4:

John works for Company A on an H-1B visa.  Company A lays off John and his last employment day is on November 1.  John receives severance pay equaling to 3 months of pay.  Since the severance pay does not count as working time, John’s grace 60-day period begins on November 2 and ends on December 31.    Fortunately, John finds a new position within a week with Company B, who files a H-1B visa transfer petition on November 9.  John joins Company B on November 13.  After several weeks at Company B, John’s dream job comes open at Company C.  John accepts the job offer at Company C on December 4.  He informs Company C that they must file his H-1B petition prior to December 31 because the H-1B petition at Company B had not been approved yet. Therefore, he was still in the 60-day grace period of Company A.  Company C filed a timely H-1B petition on December 14 and John joined on December 18. He is allowed to remain in the U.S. and work for Company C.

These are only a few scenarios, there are many others.

We at Bashyam Global Immigration Law Group understand how stressful it is for a foreign worker to lose their job unexpectedly.  We are available to consult with anyone who finds themselves in this situation and provide guidance and options to maintain legal status in the US.