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H-1B Visa Layoff and 60 Days’ Grace Period

An H-1B visa is given to temporary workers in the U.S. and is sponsored by an employer. H-1B visas are typically reserved for jobs that are complex in nature, are in a specialized occupation, and require a bachelor’s degree at the minimum.

Generally, an H-1B visa holder is allowed to remain in the U.S. and work for the duration of the H-1B visa petition, until the I-94’s expiration date. However, due to various reasons—such as a poor economy or lack of work at the employer’s site—the workers may need to be laid off. While U.S. citizens and green card holders just have to find a new job, an H-1B visa worker’s eligibility to remain in the U.S. depends upon having a job. They face additional challenges, and they often wonder how long they can stay in the U.S. and how long they have to find a new job.

If an H-1B visa holder is laid off from his or her job, they have 60 days or until their I-94 expiration date, whichever comes earlier, before they are considered out of status. This rule is effective as of February 17, 2017. The exact same rule applies to non-immigrant workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status.

Calculating 60 Days’ Grace Period

The 60 days’ grace period is to be calculated from the last date of employment. Therefore, if an H-1B visa employee receives any severance pay, the 60 days’ grace period should be counted when the severance pay ends.

There may be additional, state-specific rules. For example, while Texas does not require that employees be given any notice before getting laid off, California requires a minimum of 60 days’ notice, and several paychecks should be given during that duration but the employee is not expected to work.

All H-1B visa holders get this grace period by the virtue of the law, and they don’t have to individually request it from USCIS. There are no such forms to do so, and there is no procedure to apply for the same.

Even though USCIS normally provides the 60 days’ grace period, it can be denied, cancelled, or shortened for various reasons such as unlawful employment, fraud, or criminal convictions.

Layoff vs Voluntary Termination

Most employees would not consider resigning from a job before getting a new job, especially H-1B workers, whose ability to stay in the U.S. and work depends upon the job. However, even if the H-1B worker voluntarily resigns from the H-1B sponsor employer, the same grace period is available. However, this should be highly avoided as those circumstances were created by the employee and are entirely within their control, and USCIS may not look favorably on such cases sometimes.

H4 Visa Spouse and H4 EAD

An H-4 visa is given to the spouse and dependent children (under 21 years of age) of the H-1B visa holder, and its validity depends upon the underlying H-1B visa status. Therefore, the dependents get the same grace period as the primary H-1B visa holder.

If the H-4 visa holder has received an EAD, they can continue to work on that during the grace period, as they are still in status.

Travel Outside the U.S.

The purpose of the 60-day grace period is for the H-1B visa worker to stay in the U.S. and find another job. Therefore, if you travel outside the U.S. during that period, your grace period would end. If you get a job with another employer, they will have to file your new H-1B visa petition (which would generally be cap exempt). You would need to wait for that H-1 visa petition to be approved. After that, if you already have a valid H-1B visa stamp (even if it is from prior employer), you can travel to the U.S. with the new H-1B visa petition approval, I-797. Otherwise, you will need to get another H-1B visa stamp at the U.S. consulate or embassy before you would be allowed to travel back to the U.S.

Unused Grace Period

You are able to use the grace period only once per H-1B petition’s validity period.

That means that if you get laid off from employer A, use the grace period, employer B files a new H-1B petition for you, and you later get laid off again, you can use the grace period again.

However, if you get laid off from employer A and you are rehired before the grace period ends, and if you get laid off from the same employer within the validity period of the same petition, you don’t get another 60 days’ grace period. On other hand, if the same employer rehired you before the grace period was over, and they later filed for an H-1B extension for you and then you get laid off again, you will get another grace period as it was a new petition.

Out of Status vs Unlawful Presence

Once your grace period is over, you are considered out of status. However, if your I-94 date is not yet expired, you are not accruing unlawful presence.

This distinction is very important. If a person has unlawful presence of 180 days or more, they will be barred from re-entering the U.S. for 3 years. If the person has unlawful presence of 1 year or more, they will be barred from re-entering the U.S. for 10 years.

The H-1B worker is not allowed to work during the grace period. If they start working without authorization, they immediately start accruing unlawful presence.

Employer Responsibilities

When the H-1B visa holder is laid off, the employer should inform USCIS about the event and withdrawing the petition. Otherwise, in case of a dispute later, the employer may be held liable for the wages until the time the employer informed USCIS of such termination.

Additionally, the employer should offer to pay for the reasonable cost of one-way transportation to the worker’s last country of residence prior to the U.S. This obligation does not apply to dependents on H-4 visas or to other belongings and property, such as cars. The employer can put a restriction of a reasonable time frame before their offer expires, as this offer would show their legitimate intent to provide such transportation. Even though not legally required, it might be helpful if the employer offered to help such workers find a new job, serve as a reference, or provide any pointers that would help them get a new job.

It might be a good idea for the employee to get the experience letter from the employer, as it might be useful in the future for a new H-1B job or at the time of green card filing.

Unemployment Benefits

Laid-off H-1B workers are not eligible to collect unemployment benefits because in order to do so, the worker should be available and eligible to work. Laid-off H-1B visa holders are available to work but not eligible to work. Therefore, unemployment benefits are not available.

Post Layoff Alternatives

While getting laid off is a stressful situation for anyone, it is especially so for H-1B visa holders, whose eligibility to work and live in the U.S. depends upon the job. There are several options for such laid-off workers:

1. Leave the United States

H-1B visa holders live in the U.S. just like other U.S. citizens. They have a life in the U.S., including property such as cars and a house. They have a friend circle in the U.S., and many of their children attend schools in the U.S. For many of these children, the U.S. is the only country they know as home.

Additionally, if the person is outside the U.S., it would be a lot more difficult to search for a job and attend interviews.

Therefore, very few people are interested in choosing this option and would like to explore other options to find a new job so that they can stay in the U.S.

2. Find Another Job

  • H-1B Transfer:
    A laid-off H-1B visa worker has the option to find another job with another employer and file for an H-1B transfer. The worker can start working for a new employer as soon as USCIS receives the new H-1B petition. Even though the proof of the new petition reaching USCIS by courier tracking is enough, it is much safer to wait until the USCIS issues the receipt number. However, if the new employer does not allow you to start working until your H-1B visa petition is approved, you would need to wait.

    When filing for an H-1B transfer, you have to provide the pay stubs from your prior employer, and you would do the same whether you are filing for transfer while you have your current job or because you were laid off from a previous job. There is not a separate procedure specific to the layoff scenario.
  • Multiple Filings:
    If you are able to get multiple job offers, it is possible to file multiple H-1B transfer petitions at the same time.

    As soon as USCIS receives the H-1B petition from one employer, you can start working for that employer. If you don’t like that job so much, and if another employer has filed an H-1B petition, you can start working for another employer as soon as the USCIS receives that petition. However, it would be much safer if you wait until the petition from the first new employer is approved first.
  • H-1B Transfer Within the Grace Period:
    If another employer files for an H-1B visa petition and the USCIS receives it within the grace period, the H-1B worker will not be considered out of status.
  • H-1B Transfer After the Grace Period:
    If another employer files for an H-1B transfer after the grace period has expired but before the end of the I-94 validity, the worker will not accrue any unlawful presence.
  • H-1B Transfer After I-94 Expiry:
    If another employer files for an H-1B transfer after the expiration of the grace period and after the I-94 validity date, as long as it is down before 180 days of unlawful presence, the worker can start working for another employer after getting the receipt notice. The 3-year bar would not apply.

    Of course, if during this time the USCIS or another government agency such as ICE orders you to leave the U.S., you would be required to do so.
  • More than 180 Days Out of Status:
    If the person has been out of status (not unlawful presence) for more than 180 days, they would not be able to file for adjustment of status in the U.S. They would need to either complete the green card processing outside the U.S. (through immigrant visa), or they can get a new H-1B visa and enter the U.S. to file for adjustment of status.

    However, during the time the person is out of status, if the employer notifies the USCIS of revocation of the petition (which most employers do), the USCIS may revoke the authorized duration of stay and that may start accruing unlawful presence.
  • More than 180 Days of Unlawful Presence:
    If the person has accrued more than 180 days of unlawful presence, once they leave the U.S., they would not be able to return for three years.

    If the person has accrued more than 1 year of unlawful presence, once they leave the U.S., they would not be able to return for ten years.

3. Change of Status

  • H-4 Visa Status:
    If spouse is on H-1B visa, they can file for a change of status to H-4 visa status.
  • B-2 Status:
    The person may apply for change of status to B-2 (tourist, visitor). However, that is not recommended due to several reasons, such as:
    • B-2 visa is for tourism, and it would be much harder to convince the USCIS that you are in the U.S. for tourism when you actually are looking for another job.
    • There is no need to go through this route, as there are various opportunities to find another job and remain in the U.S. during and even after the grace period, as explained above.
    • Once the USCIS grants B-2 status, if the new employer files an H-1 petition, the worker can’t work until such petition is approved.
  • F-1 Status:
    If you would like to take this opportunity to do further studies in the U.S., you can get admission into a U.S. college or university and file for change of status to F-1.

    Moreover, some of the schools provide CPT that allow you to start working (sometimes even full time) while you are studying.
  • Marry a U.S. Citizen:
    This may not be an option for everyone, but if you are already planning to get married to a U.S. citizen (such as dating, engaged, etc.) or if you are able to find such a person, you may get married and your spouse can file for your immigrant petition as well as adjustment of status right away.

    Even though it is possible to get married to a permanent resident (green card holder), you can’t file for adjustment of status immediately based on that, as there is usually a waiting period of around five to six years. During that time, you will have to find another independent way of being in the U.S. Until your priority date is current, you can’t file for adjustment of status, and until then, you have no right to stay in the U.S. on the basis of marriage to the green card holder.
  • Investor Visa (E-2, E-3 Visa):
    There are many countries with whom the U.S. has a treaty under which citizens of those countries can get an E-2 visa to start a new business in the U.S. The minimum investment is $100,000.

    However, citizens of India and China are not eligible for this.

    An E-3 visa is similar to E-2 visa but for citizens of Australia.
  • Investment-Based Green Card:
    This is not an option for most people, but if they have $1.8 million ($900,000 in unserved or special areas), they can file for investment-based green card under the EB-5 category.

Conclusion

Getting laid off from a job can be stressful, especially so for H-1B visa holders. However, there are ways to mitigate the ordeal and still be able to continue to stay in the U.S. with the right approach.

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