Working and living in the U.S. can be an exciting prospect for many, even for those with a few options. However, losing your job can give a terrible feeling, especially when it’s a high-paying position. Often, most H-1B workers tend to panic when their employment ends and readily await deportation.
Not to worry, you have the opportunity to get a new work authorization and continue your H-1B visa status in the country. However, you don’t have much time and from the expiration date to when your nonimmigrant status will be reviewed, you have to maintain lawful status. Any unlawful act committed within the expiration date and the grace period will affect your nonimmigrant status. Staying in the country without an active job will lead to visa termination and international travel.
This article gives guidelines on handling employment termination and employment authorization, searching for new jobs, H-1B petition, and the exact time you have to perform these tasks. It also covers how USCIS approves labor condition application, the new rule for those who want to re enter their home country among others.
What is a Visa Grace Period in Immigration?
A grace period in immigration refers to a duration you normally get to renew your valid nonimmigrant status and employment authorization after expiration or leaving the country. This period is often given, considering the circumstances surrounding your visa expiry or delay in renewal.
In the case of the H-1B status, your visa faces a threat of expiry upon losing your job. There are often varying grace periods for different visa statuses or conditions within which employees whose jobs are about to expire can file a petition. There is an appropriate department where the filing process should be done and the requirements to be followed by an H-1B employer or any other employment authorization staff carrying out the filing process in the department.
How Long is H-1B Valid After Losing a Job?
Usually, the H-1B visa is valid for about eight weeks after losing a job. The period exists for foreign U.S. employees laid off, resigned, or terminated from their existing positions. This helps them deal with their new employment status and gives them enough time to seek a new job or apply for a change of position from the same employer.
Furthermore, the H-1B visa holders and their H-4 dependents will keep a valid non-immigrant status during the grace period, starting immediately after the H-1B worker’s final day of employment.
What Happens to My H-1B If I Get Fired Before the Authorized Validity Period?
Upon job termination or resignation, your H-1B status remains as long as you actively seek new employment opportunities. However, you’re afforded a 60-day period where you can decide to change your employment or immigration status.
When you lose your job, your previous employer notifies the USCIS of your employment termination. Immediately, your current H-1B status is placed under review and given two months to retain its previous status or change to a new one. If neither happens within the given timeframe, the USCIS revokes your H-1B visa.
In other words, nothing affects your H-1B status if you take action within the 60-day validity period. However a good attorney client relationship will be necessary to address any challenge that may spring up within the 60 day grace period provided.
Is There a Grace Period Provided by the United States Citizenship and Immigration Services After H-1B Expires?
Yes. There is a validity period for all work visa holders, including the H-1B immigrants to bring any H-1b petition they have. This period usually spans two months or exactly sixty days.
Foreign nationals may remain in the U.S. beyond their 60 day grace period if they either;
- Locate prospective employers that can file an H-1B visa transfer application,
- Change their H-1B visa to a dependent status if they have a spouse working in the United States on an H-1B or L visa, or
- Locate a U.S. employer to sponsor the H-1B holder on a different visa type.
However, H-1B workers or terminated employees need to note that they cannot travel internationally within their grace period until the H-1B petition process is initiated, completed and entered into the federal register.
What Is the Employer’s Role When An Employee With An H-1B Visa Is Terminated?
When employers terminate an H-1B employee’s work contract before the conclusion of their authorized visa period, the U.S. Department of Labor (DOL) may consider the U.S. employer responsible for the worker.
The H-1B employer will have to pay the beneficiary employee’s wages or other reasonable costs until the scheduled H-1B expiry date. He will also be liable for other penalties unless the employer commences the standard three-step process of terminating an H-1B visa holder’s employment. This standard process is called a “bona fide termination.”
The penalties mentioned above only apply when an H-1B employer fails to uphold these requirements or when an employee is fired for breaching working rules . Also, employers should note that the penalty to pay return transportation costs to an employee does not apply to one who decides not to leave the United States. So, it is advised not to include the return transportation costs when submitting a petition for new H-1B status.
What Is a Grace Period For An H-1B Visa?
A grace period for an H-1B visa is a 60-day duration available for its holders when they have been relieved from their employment duties. It gives employers an opportunity to change staff and employees enough time to re-apply for a job or change their position. Also, it doesn’t matter if their H-1B visa was far from its expiry date. You immediately have 60 days as provided by USCIS to retain your visa privileges upon job termination by submitting a petition.
In this 60 day grace period you can remain in the United States except under certain circumstances prescribed by USCIS barring such individuals from applying for a new H 1b. In this period, employers should also avoid continuing wage liability or seek alternate employment.
Requesting An H-1B Grace Period
There is no existing form or application to request an H-1B grace period but there are regulations that guide it which are provided by USCIS. Generally, a 60 day grace period is provided when an H-1B transfer or status change is filed for the laid-off employee. However, the petitioner will have to explain the loss, seek sponsorship, and offer necessary evidence to support it.
Employers who want high skilled nonimmigrant workers can also request for a subsequent grace period for existing employees pending when they get a new employer file or when such individuals get a new petition.
However, a complaint can be filed by a new employer to USCIS during the 60 day grace period when a previous employee has been laid off. This is done when the H-1B employee believes that an employer maintaining status does not adhere to bona fide termination of employment.
Who Will Not Be Eligible For An H-1B Grace Period?
Although the United States Citizenship and Immigration Services (USCIS) can permit a 60-day grace period for H-1B holders who resign or get laid off in their jobs, the agency can also withdraw the grace period.
This can happen for H-1B holders who do not possess clear and convincing evidence of quitting. Thus, an H-1B holder should avoid quitting jobs without a concrete and legal justification. The Department of Homeland Security (DHS) will also deny or limit the grace period for H-1B holders who have enjoyed an illegal stay in the United States or carried out unauthorized employment.
H1B Grace Period After Employment Termination
After termination, the H1B grace period exists for only valid H1B holders. Those who have used up their stay period and acquired unlawful employment are not eligible for this grace period. Those who suddenly quit their jobs with any legal justification may also not be afforded this grace period.
Just Got Laid Off From H-1B Job—Do I Have Any Grace Period, or Can I Get Another Visa to Job Hunt?
If your employment status has just been terminated, you have enough time to search for new employment or change your valid status. Typically, you have an official grace period of sixty days which can be extended if you’ve already found a new employer but not completed the employment process.
However, if a change of valid status is your preference as a H-1B worker, you may apply for a new visa during the sixty-day grace duration.
Do You Want Legal Help?
Understanding what the grace period is essential to maximizing it. In our over 26 years of dealing with foreign professionals, we understand the grace period and the peculiarity of it on a case by case basis. We also understand the final rule and how it relates to this grace period. If you need help, you can contact us today via +1-800-808-4013 or +1-216-696-6170 to schedule consultations on Zoom, Skype, WhatsApp, or Facetime.
If you need to speak to a professional immigration attorney directly, you can schedule a consultation with Richard Herman by booking online.
Employment terminations or resignations don’t have to be the end of your H1B journey. As an H-1B worker, you can take advantage of the grace period to reflect, reorganize, seek new employment opportunities, or change your current position.