H-1B Grace Period - What Happens when H-1B Employees Get Laid Off?
As USCIS began accepting H-1B petitions for the 2024 fiscal year earlier this month, it is as a time as any to discuss a nightmare scenario for H-1B workers - what happens if you lose your job? How long can I stay in the U.S. after getting laid off? Can I find a new employer to sponsor my H-1B? If so, when can I start working for them legally? What are my other options to remain in the U.S.? Hundreds of H-1B employees are asking themselves these qh-1b-grace-period-what-happens-when-h-1b-employees-get-laid-offuestions right now after major tech companies recently laid off thousands of employees, including Google, Microsoft, Facebook, and Amazon.
H-1B Employees Get a 60-Day Grace Period to Find a New Employer
H-1B status is directly tied to employment with the petitioning company. Once employment ends, so does your H-1B status - but not immediately. H-1B workers are provided a 60-day grace period to remain in the United States after their last day of employment. It is important to note that if your H-1B validity period (as indicated in your I-94) is already set to expire before the end of the 60-day grace period, you are only authorized to remain in the United States until the end of your H-1B validity period.
During the H-1B grace period, you are allowed to look for a new employer willing to sponsor your H-1B. Your H-1B status is portable, meaning it can be transferred to a new employer so long as your new position is similar to the position for which your H-1B was initially filed. Your new employer will need to file a new petition for your H-1B prior to the expiration of the grace period. The rules allow you to begin working for your new employer as soon as the petition is filed, meaning you do not have to wait for the petition to be approved before starting work at your new job.
H-1B Employees Can Apply for a Change of Status During the Grace Period
Not every H-1B employee is lucky enough to find a new employer willing to transfer their H-1B within 60 days of losing their job. If you need more time in the U.S. to continue your search, you can apply to change your status from H-1B to B-1 (business visitor) or another nonimmigrant status (such as E-2 for investors or F-1 for students). If your change of status application is filed before your grace period expires, you will not begin accruing unlawful presence, even if the application is not approved before the end of your grace period. However, if the application is denied, you will begin accruing unlawful presence the day after the denial decision is issued by USCIS. You should keep in mind that if you are applying to change your status to a different nonimmigrant status, you will need to prove that the purpose of your stay is permitted under your new status, and that you intend to return to your home country.
Adjustment of Status to Permanent Resident
Some H-1B employees may qualify to apply for permanent residency during the grace period without leaving the country through the adjustment of status process. This option is not available to most H-1B holders, but is an option to spouses of U.S. citizens or individuals who are eligible to self-petition for permanent residency (meaning they do not need an employer to petition their residency). Individuals who can self-petition permanent residency include individuals with extraordinary abilities (EB-1 petition) and individuals whose work is in the national interest (EB-2 National Interest Waiver petition).
Unfortunately, not all H-1B employees will be able to find a route to remain in the U.S. after the grace period expires. On the bright side, once abroad you can apply for readmission into the U.S. for the remainder of your H-1B validity. Also, if your termination was involuntary, your employer is responsible for paying for your transportation to return home. While the urge to remain in the U.S. may be strong, it is important to leave the country prior to the expiration of the grace period as overstaying could prevent you from obtaining legal status or returning to the U.S. in the future.
If you have any questions regarding H-1B petitions, or any other immigration matters, please contact our office at firstname.lastname@example.org.