What is the USCIS 60-Day Grace Period for H1B Visa Holder in a Lay-Off? | Immigration Attorney |

Under certain regulations, a discretionary grace period is available for individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, as well as their dependents. This period allows them to be regarded as maintaining their status for up to 60 consecutive days or until their authorized validity period ends, whichever comes first, following the termination of their employment (Refer to 8 CFR 214.1(l)(2)).

During this grace period, workers may preserve their nonimmigrant status if a new employer files a timely petition on their behalf, including a request for an extension of stay (for example, an H-1B change of employer petition for someone in H-1B status).

Alternatively, workers can stay in the U.S. under a period of authorized stay if they file a timely application to change to a different nonimmigrant status (like B-2 visitor nonimmigrant status) or apply for an adjustment of status, if they qualify (detailed options are discussed below).

Workers who fail to file a change of status application in time, or cannot find a new employer to file a timely change of employer petition, might have to leave the U.S. at the end of this grace period.

Portability to a New Employer

Portability rules allow H-1B status workers to start employment with a new employer as soon as a new H-1B petition is properly filed with USCIS, without waiting for the petition’s approval. Further details on H-1B portability are available on the H-1B Specialty Occupations page.

Change of Status

The up to 60-day discretionary grace period can be used by workers to apply for a change in their nonimmigrant status, which may include becoming a dependent of a spouse (like H-4, L-2). Some dependents in nonimmigrant status might be eligible for employment authorization, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants (See USCIS Policy Manual). Additionally, some H-1B workers’ spouses may qualify for work authorization under certain conditions.

Note: Filing a timely, non-frivolous application to change status halts the accumulation of unlawful presence until the application’s decision. If filed before the end of the 60-day grace period, unlawful presence does not accrue while the application is pending, even after the grace period. If approved, the individual’s status changes and is considered to have been in authorized presence throughout the application’s pending period. If denied, unlawful presence accrues from the day after the denial. More information is available on the Unlawful Presence and Inadmissibility page.

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