Surviving Layoffs on H1B: Navigating the 60-Day Grace Period
Losing your job as an H1B visa holder presents considerable difficulties. This guide outlines a step-by-step approach and offers various alternatives for navigating this challenging scenario.
Understanding the H1B Grace Period
The H1B visa is a non-immigrant category for highly educated foreign professionals in specialty occupations requiring at least a bachelor’s degree. Common in fields such as mathematics, engineering, and technology, the H1B initially lasts three years and can be extended up to six years. If you are under H1B status, you must continue to work for your employer in order to maintain your status.
However, like any worker in the United States, the continuation of your employment is not guaranteed, regardless of your visa status. Employers sometimes opt to downsize their workforce for a number of reasons, including financial difficulties, budget reductions, mergers, shortage of work, and more. In these cases, you may receive the unfortunate news that you’re being laid off, which has significant implications for your visa status.
In general, once your employment ends, you will have a 60-day grace period, during which you must secure new employment, switch to another status, or leave the United States. This approximately two-month window allows you to amend your status after your layoff, providing you an opportunity to secure alternative arrangements. As such, you must be prepared for this scenario by understanding your options in case you are laid off by your H1B employer.
When the 60-Day Countdown Starts
The USCIS defines the H1B grace period as beginning the day following termination of your employment, generally meaning the last day you receive a salary or wage. However, before you worry that your grace period will begin as soon as you clock out of your job for the last time, know that you may have some options to increase the time you have to secure a new H1B employer or to explore other options to maintain legal status.
Tips for Expanding Your Grace Period
- First, upon notification of your layoff, approach your human resources representative to negotiate more favorable terms for your employment termination. One possibility is to ask for unpaid leave, enabling you to stay on your employer's payroll without incurring any financial burden for them. It's advisable not to make this the final month of your employment. Ideally, consider requesting your second-to-last month as unpaid leave. This way, you still receive payment on your last day. Should HR consent to this plan, they ought to create formal documents outlining your unpaid leave and your official termination date.
For instance, when Uber laid off thousands of employees in 2020, the company offered to keep foreign workers on their payroll for an additional month, essentially extending the grace period to 90 days, as the legal 60-day grace period did not begin until the official date of termination, about a month after employees’ final day of actual work.
- Secondly, if you work for a company with more than 50 employees, you may be entitled to FMLA (The Family and Medical Leave Act), allowing you to remain on the payroll without receiving pay for up to 12 weeks. Check with your HR department to see if they will permit you to use your FMLA days before your official departure from the company.
While you aren’t guaranteed that your employer will agree to such an arrangement, approaching HR to discuss the possibility of moving your formal termination date–as well as preparing appropriate documentation–will increase your chances of buying more time to navigate your next steps, which may include securing a new H1B employer, filing an I-140 immigrant petition, or changing your status to F1, among others.
7 Options After Laid Off on H1B
If you want to remain in the United States once your grace period expires, you will need to begin planning as soon as you receive notice of your termination. While you have a number of options, you don’t have an abundance of time. Consider the following opportunities and be sure to begin working toward your next steps as soon as possible.
If you obtained your H1B via the lottery, you’ll be permitted to seek a new H1B sponsor without counting against the cap. As soon as you’re laid off, begin the search for your next employer. A number of large companies–such as Amazon, Microsoft, and IBM–are well-known for hiring a large pool of H1B employees (check out our CPT & H1B Friendly Employer List).
Unlike the initial H1B visa application, the H1B transfer is not subject to any annual cap. Therefore, existing H1B visa holders are exempt from the H1B lottery and do not count towards this cap.
Steps for H1B Transfer
Obtain a New Job Offer: Secure an offer from a new U.S. employer.
Labor Condition Application (LCA): The new employer must obtain an LCA from the Department of Labor, ensuring fair treatment and a proper work environment for the foreign worker.
File Form I-129 with USCIS: This petition, filed by the employer, seeks permission to hire a foreign worker. Once USCIS processes the petition and issues a receipt number, the employee can start working with the new employer. Approval is confirmed with Form I-797.
Employment Eligibility Verification (Form I-9): This form must also be filed by the employer.
Pay Transfer Fees: The employer is responsible for fees similar to the initial H1B application, including I-129 filing fees, ACWIA Fee, Fraud Prevention and Detection Fee, and the Public Law Fee. For premium processing, an additional fee is required.
The processing time of an H1B visa transfer takes 1 to 4 months to process under a regular procedure and 15 to 30 days for premium processing. Following this period, you will receive a response from USCIS, which could be either approval or denial, or they may request a Request for Evidence (RFE), though the chances for this are low.
NOTE: The time taken for filing an H1B transfer is included in your 60-day grace period. To ensure safety, it's advisable to secure a new job that sponsors an H1B transfer within the first month and a half after being officially laid off. Ideally, your new employer should opt for premium processing of your H1B transfer.
The H1B transfer process is essentially identical to the initial H1B filing process. Although termed a "transfer," it requires the new employer to apply for an H1B on your behalf, with the key difference being the exemption from the lottery process. Therefore, all the fees are also required to be paid by your employers.
From an employer's standpoint, hiring a candidate on an H1B visa implies onboarding them without a probationary period due to visa constraints. This is an unspoken reason why many companies are hesitant to hire international workers, particularly those on H1B visas.
NOTE: An H1B visa obtained through the H1B cap-exempt program cannot be transferred to a different employer.
Apply for An O1 Visa
The O-1 visa is awarded to individuals who have demonstrated extraordinary ability or achievement and are recognized as being at the pinnacle of their fields, including arts, sciences, sports, business, film, television, or education. Holders of an O-1 visa can also bring family members under the O-3 category, or an assistant essential for a specific event under the O-2 category. Notably, the O1 visa allows for dual intent, meaning that you can ultimately adjust your status to a Green Card, permitting permanent residence in the United States.
Like the H1B visa, O1 visas require a sponsoring employer, so you will need to seek a new employer to petition on your behalf as soon as possible. Unlike the H1B, however, the O1 visa requires that you demonstrate extraordinary ability by fulfilling specific criteria. Depending on your field of endeavor, common criteria include the authorship of scholarly articles in major trade or professional journals, making original contributions of major significance to your field, and serving as a judge of others’ work within your field.
O1 Visa has two subcategories, namely:
- O1A: Individuals with outstanding abilities in science, education, business, or athletics.
- O1B: Individuals with extraordinary talent in the arts, motion picture, or television industry.
Criteria to be Qualified for O1 Visa: O1A vs O1B
|O1A - STEM Field
For talents in science, education, business, and sports.
To apply for O1A, one must demonstrate extraordinary ability in their field, achievable by only a small percentage of people. Continuous national or international recognition is required. This can be evidenced either by a one-time international award or by meeting at least three of the following criteria:
In early 2022, the Biden administration relaxed the O1A application criteria for STEM professionals to bolster U.S. technological strength. The new policy covers talents in science, technology, engineering, and mathematics. A STEM student who wishes to apply for O1A has to meet at least three of the following criteria:
For talents in the arts, film, and television industry.
To apply for O1B, one must possess extraordinary ability in their field, evidenced by national or international awards like the Oscars, Emmy, Grammy, or Director's Guild Awards. In the absence of such awards, evidence of at least three of the following achievements is required:
*Alternative evidence can be submitted if the above criteria do not apply to your profession.
Additionally, under the new policy, immigration officers will consider the ranking of the universities or institutions where the applicant has studied, the ranking of journals where articles are published, citations significantly higher than peers, and presentations at academic conferences.
Alternative evidence can be submitted if the above criteria do not apply to your profession.
File an I-140 Petition
An I-140 is an immigration form used to petition for a foreign worker to become a permanent resident in the United States. While an employer often submits an I-140 petition on behalf of the foreign worker, some I-140 categories, such as NIW and EB1A, allow you to self-petition.
To successfully file an EB1A petition, you must demonstrate that you possess extraordinary ability in your field. Similarly to the O1 visa discussed above, you must fulfill several criteria such as making original contributions of major significance to your field or having membership in organizations that require outstanding achievements. You should note that securing an EB1A is often more difficult than other options, as immigration officers will tend to scrutinize your credentials to determine if you are truly at the top of your field.
A more common category for I-140 petitions, and a somewhat less rigorous one, is the NIW. To qualify for an NIW, you must possess an advanced degree and demonstrate that you meet three required factors. First, you must establish that your proposed endeavor has substantial merit and national importance. For example, if you’re a computer scientist developing an initiative to enhance a particular public service, you may need to demonstrate how the endeavor has a positive environmental impact, fosters economic growth, or strengthens national security.
Secondly, you must prove that you are well-positioned to advance the proposed endeavor. You can do this by submitting reference letters, demonstrating a strong record of publication and citation, and describing your recent and upcoming projects in detail. In addition, you must demonstrate that waiving permanent labor certification requirements would benefit the United States.
Please note that filing an I-140 establishes that you have immigrant intent, which can have implications if you look to secure another visa prior to obtaining your Green Card. While some visas allow for dual intent, others allow only for nonimmigrant intent. For example, if you have filed an I-140, thus establishing immigrant intent, you may be denied if you later apply for an F1 visa. Filing an I-140 petition requires a thorough understanding of U.S. immigration policies, and consulting with an experienced immigration attorney can benefit you significantly.
Change to Other Status
If your H1B Grace Period is nearing its end and you haven't secured another job or initiated an I-140 petition independently, your remaining option is to file Form I-539, known as the change of status application. This allows you to switch from one non-immigrant status to another, in this case from H1B to a different category. Common alternatives include H4, B1/B2, and F1, each with its own advantages and disadvantages. Continue reading to determine which option is most suitable for your circumstances.
Change Status to H4 Visa
If you are married to a spouse who holds an H1B visa, you may be able to transition to an H4 visa by filing an I-539 with the USCIS. You will need to ensure your spouse maintains their H1B status and submit any necessary documentation, including your marriage certificate, copies of your and your spouse’s passports, and a reference letter from your spouse’s employer. Once approved, you can enjoy the benefits of an H4 visa, allowing you to reside in the United States and giving you time to plan for future employment or education.
Furthermore, if your spouse is the beneficiary of an approved I-140, you may be eligible for work authorization otherwise unavailable to H4 visa holders. In this case, you will need to apply for and obtain an Employment Authorization Document (EAD), which grants you the opportunity to pursue employment opportunities, contribute to the workforce, and earn income while maintaining your dependent status.
Change Status to B1/B2 Visa
B1/B2 is a travel visa, typically allowing a stay of up to 6 months for most individuals, although this duration can vary based on nationality. You have the option to switch from H1B to B1/B2 and then revert to H1B once you secure a new job with H1B sponsorship. However, unlike with H4 or F1 visas, individuals on a B1/B2 visa are not permitted to attend school or work legally in the United States.
Change Status to F1 Visa
A simpler and more feasible option is to pursue a new degree in the U.S. and switch from H1B to F1 status. This transition can be handled within the U.S. As a full-time F1 student, you might qualify for CPT work authorization, depending on your program. If you find a job during your internship and prefer working over studying, you can secure a sponsor for your H1B visa. Then, you can smoothly transition from F1 back to H1B status, bypassing the H1B lottery.
Typically, you become eligible for CPT after completing an academic year at your university. However, some programs are designed to integrate work into the curriculum, permitting students to apply for CPT from the first day. These are known as "Day 1 CPT Programs". Enrolling in a Day 1 CPT program has become increasingly popular among international students, as it enables them to work while studying, achieve academic progress, and gain work experience simultaneously. To learn more, check out our essential guide for Day 1 CPT, or fill out the form below to initiate a conversation with our consultant. All our consultations are free of charge.
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H1B Layoff - FAQs
Have Question? We are here to help
What happens to my H-1B if I gotlaid off?
If you are laid off but your I-94 remains valid, you are eligible for the 60-day grace period. Within this timeframe, you can search for a new H-1B employer, switch to a different non-immigrant visa status, apply for an EAD under compelling circumstances, or leave the United States.
What if my I-94 had less than 60 days when I got laid off on H1B?
The 60-day grace period is applicable only if your I-94 is current and valid. Should the I-94 expire during this grace period, you are required to adhere to the expiration date specified on that document.
If I choose to leave the country, can I reactive my H1B when I come back?
What is the 240-day rule for H-1B?
If an employer files a petition on time for an employee with H-1B status seeking to extend their employment in the same category, the employee is allowed to continue working for the sponsoring employer for an extra 240 days beyond the expiration of their current status. This provision is often known as the 240-day rule.
Can I change of stunts to B1/B2
You may legally extend your stay in the U.S. by filing I-539 to change your H1B status to B1/B2 status.
Is the 60-day grace period a guarantee?
How many times can I use the 60-day grace period?
No! The 60-day grace period can only be used “once during each authorized validity period.” This means once per H-1B approval.
Can I open my own business to sponsor myself?
Entrepreneur Parole is a temporary visa option to allow entrepreneurs the opportunity to set up businesses in the United States and create jobs for U.S. workers. To be eligible for entrepreneurial parole, you must have a strong interest in a startup with rapid growth and job creation potential and play a significant role in the startup's operations.