Employees who work with an H-1B visa sometimes face challenges if they lose their jobs. Fortunately, there's a new rule in place called the Final Rule, as per the Federal Register, which provides certain benefits and a grace period for H-1B visa holders who need time to find new employment. In the past, if someone with an H-1B visa lost their job, it had serious consequences for their visa status because this visa is tied to their employment. They had to either find a new job quickly or leave the country to avoid being considered "out of status."
However, starting from January 17, 2017, foreign professionals holding H-1B visas are granted a 60-day grace period if they lose their job. This grace period, according to the Final Rule, can be used to search for a new job, change their visa status, or even leave the country to avoid any issues with their visa status.
H1B Grace Period 2023 Misconceptions
If you, like many others, believe you have a ten-day grace period after your job ends with an H-1B visa, it might be because you misunderstood the visa rules:
When you have an H-1B visa, you can stay in the United States for the time mentioned in your visa approval, plus an extra 10 days before your visa period begins and 10 days after it ends. But you can only work during the visa's approval period. The USCIS does allow a 10-day grace period after your H-1B visa expires (and your employer doesn't extend it) for you to sort out your affairs and prepare to leave the U.S.
However, this grace period only applies if your visa naturally reaches its end. If your job ends before that, these 10 days don't apply. Fortunately, there's still a new 60-day grace period that can protect you.
As per the H-1B visa terms, you must be actively working and earning wages from your employer to maintain legal status. If you're still employed but not receiving wages, you have 60 days to regain your legal status before being considered "out of status.
Understanding the 2023/24 H-1B Grace Period When You Lose Your Job
What does the H-1B Grace Period in 2023/24 mean if you lose your job? Well, it's like a window of time, about 60 days, during which you're still considered legally allowed to stay in the United States.
Why does this matter? Because U.S. immigration law requires you to be in good standing to apply for things like a change in your immigration status, an extension, or other related benefits. So, this grace period is like a safety net, giving you a chance to either switch to a different kind of visa or find a new H-1B job.
But here's the thing - you don't automatically get this grace period. The Department of Homeland Security (DHS) gets to decide if you qualify for it. They look at each case separately and decide whether to grant, shorten, or deny that 60-day window. In simple terms, you have to provide some really good reasons to convince them. The DHS reviews the evidence you present, and based on that, they'll either say "yes" and give you the full 60 days or say "no" and take it away.
Possible Reasons Why Your 60-Day Grace Period Could Be Denied
While most of the time, the DHS grants this grace period through the USCIS, there are situations where they might say "no." These situations are usually in line with the immigration policies they've had for a long time.
For instance, it's crucial not to accumulate any illegal stay time in the U.S., because that can lead to serious consequences. If you stay here unlawfully for between 180 and 365 days and then leave, you won't be able to come back for three years. And if you've been here unlawfully for more than 365 days, you're looking at a ten-year ban.
There are other reasons too, like if you've committed fraud, worked without authorization, or faced criminal charges. These could also lead to the denial of your grace period.
How to Ask for an H-1B Grace Period?
Getting an H-1B grace period isn't as complicated as some other immigration programs. You won't need a specific official form for this. One way to go about it is by submitting a standard application for an H-1B transfer or change of status. However, you will need to explain why you lost your job. It's a good idea to provide any available evidence to support your reasons.
Maximizing the Grace Period
Your grace period begins right after your last day at work. It's crucial to use it wisely to prevent losing your legal status and being forced to leave the United States. Here are some things to consider during these two months.
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Look for a New Job
If you know in advance that your current H-1B employer will terminate your status or lay you off, consider switching employers. Generally, USCIS approves petitions if you've had a valid status, and the gap between jobs is 30 days or less. This gives you approximately a month to find a new employer and submit a new H-1B petition.
You can check USCIS's H1B Employer Data Hub for more information on initial decisions (approvals/denials).
If you do secure another employer willing to sponsor your H-1B, they will need to follow the same steps as your previous employer. This includes obtaining a Labor Condition Application and filing another I-129 form. Fortunately, if you were already counted in the cap with your initial petition, this new petition won't be part of the lottery, so you can make the transfer at any time, not just on April 1st.
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Top Ten Companies with H-1B Approvals in 2023
If you've been working with an EAD and get laid off, you can immediately start a new job. A job loss or termination doesn't invalidate EADs.
Some major companies that sponsor H1B visas include:
- Infosys
- Microsoft
- Capgemini
- HCL America
- Amazon
- Cisco
- Deloitte
- Accenture
- IBM
What If the Gap Exceeds 30 Days?
Unfortunately, a gap of more than 30 days may reduce your chances of approval. However, this isn't always the case. Your best option is to consult with an H-1B attorney to explore your options and determine the best course of action.
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Switch to Dependent Status
If your spouse is also in the U.S. on an H-1B visa, you can consider changing to dependent status (H-4 or L-2). This allows you to search for another employer who can petition for you.
However, you need to show USCIS that your spouse has been working on their H-1B visa, demonstrate that you maintained your status before the termination, and meet other specific criteria.
If your H-1B spouse has an I-140 petition pending for a green card with USCIS, you can apply for an EAD card under H-4 status. To do this, file Form I-765, Application for Employment Authorization.
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Working on an H1B Visa During the Grace Period
During the grace period, people with H1B visas can stay in the United States, and they can also look for new jobs. However, they can only work if they find a new employer who agrees to support their H1B visa or if they get a job offer for a different type of visa. It's important to know that if an H1B visa holder can't find a new job during the grace period, they must leave the country to stay legal.
Understanding the Differences Between H2B, L1, and O1 Visas
To help you understand your visa options better for utilizing your grace period, let's compare the H1B visa with other common choices like the H2B, L1, and O1 visas.
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H2B Visa
The H2B visa is for temporary non-agricultural workers. Unlike the H1B visa, which is for specialized workers, the H2B visa is for seasonal or busy times when industries like hospitality and tourism need extra help.
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L1 Visa
The L1 visa is for employees who work for a big company with offices in different countries. They get transferred to a U.S. office. There are two types: L1A for managers and executives, and L1B for employees with special knowledge.
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O1 Visa
The O1 visa is for people who are incredibly talented or accomplished in fields like arts, science, education, business, or sports. It's for people who are at the very top of their fields.
Switching from an H1B Visa to an F1 Visa for More Education
It's possible to change from an H1B visa to an F1 visa for educational reasons, but there are specific steps you need to follow.
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Transition Process
To switch from an H1B to an F1 visa, you must first get accepted into a U.S. school and get the required I-20 form. After that, you have to apply to change your status with the U.S. Citizenship and Immigration Services (USCIS).
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Making the Transition Smooth
Here are some tips to make sure your transition goes smoothly:
- Plan Ahead: Start the application process early to have enough time for any possible delays.
- Keep Your Status: Make sure you maintain your H1B status until your F1 status is approved.
- Show Your Finances: Be ready to prove that you have enough money to support yourself during your studies.
- Talk to an Immigration Lawyer: Getting advice from an immigration lawyer can help you navigate the complicated transition process and avoid legal problems.
Importance of Maintaining Legal Status Throughout the Transition Period
It's really important to follow the rules when you're switching from one visa to another, like going from an H1B visa to an F1 visa for school. Here's why:
- Avoiding Problems with Immigration: If you don't follow the visa rules, you could get into trouble with immigration. They take this stuff seriously in the United States. If you follow the rules, you won't have to worry about getting kicked out of the country.
- Keeping Your Benefits: Following the rules is also important to keep all the good stuff that comes with your visa. For example, if you want to switch to an F1 visa for school, you have to keep your H1B visa in good standing until the switch is approved. If you mess up, you might not be able to get another visa later.
- A Smooth Transition: Following the rules makes the transition from one visa to another easier. It means you won't have big gaps in your job or have to leave the country to fix your visa. A smooth transition is less stressful and way more convenient.
- Getting a Job: If you want to work in the United States during your visa switch, you have to follow the rules. Employers need to see that you're legal before they'll hire you. Breaking the rules can make it tough to find a job.
- Going to School: If you're switching to an F1 visa for school, you have to follow the rules to enroll in a school. No, following the rules, no school, no financial aid, and no student benefits.
- Future Benefits: Playing by the rules can help you in the long run. It can make it easier to get other visas or even a green card in the future. Being a good rule-follower shows that you're serious about following U.S. laws.
- No Unlawful Presence: Staying legal during your visa switch means you won't rack up unlawful presence in the United States. If you do, you could get banned from coming back in the future. So, stick to the rules and you'll be in good shape.
Frequently Asked Questions
- Am I Eligible for the Grace Period if I Quit My H-1B Job?
You might be able to use the 60-day grace period if you leave your current job. The rules don't make a big distinction between job loss, layoff, resignation, or termination. But remember, the grace period is meant to help certain nonimmigrant workers in tough situations. So, if your situation isn't convincing enough, the USCIS might say no to the grace period. So, it's not a good idea to just quit your job without good reasons. It's better to talk to your immigration attorney first.
- Who Can Use the 60-Day Grace Period?
The 60-day grace period applies to non-immigrant workers on H-1B, O-1, E-3, TN, H-1B1, and L1 visas.
- What's the Point of the Grace Period?
The grace period is there to help nonimmigrant workers find a new sponsoring employer, change their status, or get a different visa.
- Can My H-4 Spouse Work During the 60-Day Grace Period?
Yes, your spouse on H-4 status with a valid EAD can still work even if you lose your job. But remember, your spouse's H-4 status depends on your H-1B status. When your H-1B status ends, so does their H-4 status. However, during the 60-day grace period, both your H-1B and their H-4 status stay valid, so they can keep working. But if the grace period gets denied, their H-4 status ends, and any work after that is not allowed.
- Can You Use the Grace Period More Than Once for an Employer?
No, you can only use the 60-day grace period once. For example, if you work for Company X and use the grace period, you can't use it again if you get laid off or decide to return to that same employer within 30 days on the same H1B petition. However, if you switch to Company Y with a new H1B petition and validity period, you get another 60-day grace period.
- Can DHS Shorten the Grace Period?
Yes, DHS can decide to shorten the grace period on a case-by-case basis if they suspect you've been involved in unauthorized employment or fraud. Talk to your immigration attorney if this happens to you.
- Can I Travel Outside the United States During the H-1B 60-Day Grace Period?
No, you can't leave the U.S. during the grace period. The grace period is meant for you to stay in the U.S., either to apply for a change of status or find a new employer. If you leave the country during this time, your grace period ends. Leaving the U.S. without a valid visa can also make it hard to come back. So, it's best to avoid international travel until you have an approved nonimmigrant visa.
- When Can I Start Working With a New H-1B Employer?
If you find a new H-1B job before the grace period ends and you've filed a change of employer petition, you can start working for the new employer even before the petition gets approved. But it's a good idea to wait until you have the I-797 notice of receipt as proof that the petition is with the USCIS.
- Does It Matter Whether I Quit or Get Laid Off for the Grace Period to Apply?
Technically, there's no big difference in terms of who can use the grace period. But DHS has the authority to shorten it if needed, as it's meant to help non-immigrants facing hardship.
- What If I Don't Get a New Job at the End of the Grace Period?
Unfortunately, if you can't find a new employer within 60 days, you'll have to leave the U.S. Even if you find a new job and the employer plans to file a petition on the 61st day, you still need to go. The rule only covers you for 60 days, and after that, you're out of status.
The good news is if you're in touch with potential employers while outside the United States, you can still get job offers and return to start your new job. You'll need to go through consular processing at the U.S. embassy or consulate in your country to apply for a visa.
Alternatively, if your current visa stamp is still valid when you get a new job, you can use it to re-enter the U.S. Just make sure to bring the new H-1B notice of receipt as part of your documents when you arrive at the port of entry.
