USCIS Explains Options for H-1B Workers After Job Loss

This year, many H-1B visa holders have faced layoffs. USCIS recently created and updated a dedicated webpage with numerous FAQs, which readers can check to see if any apply to their situation. This article is compiled from USCIS's page on 'Options for Nonimmigrant Workers Following Termination of Employment.'

When nonimmigrant workers (most commonly H-1B and L-1) are laid off, they may believe they have only 60 days to leave the country. In fact, there are other (limited) options. If eligible, they can take one of the following actions to continue staying legally in the United States:

• Change status, such as from H-1B to B-2 or F-1

• Adjust status (though, if one were eligible to apply for a green card, who would wait until losing a job to consider this path...)

• Apply for an emergency employment authorization document (emergency EAD)

• Change employers

If one of the above measures is taken within the maximum 60-day grace period, the person may remain lawfully in the United States beyond 60 days even after losing their prior nonimmigrant status. Conversely, if an H-1B holder takes no action during the grace period, they and their dependents must leave the United States within 60 days or by the end of their period of authorized stay, whichever is earlier.

The validity period of nonimmigrant status is based on the dates on the I-129 or I-539 approval notice; however, during the pendency of a filed change of status application, adjustment of status application, or a new I-129 filed by a new employer, the person may also continue to remain lawfully in the United States.

About the Maximum 60-Day Grace Period

Under the rules, workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN categories (and their dependents) may be granted a discretionary grace period after termination of employment of up to 60 consecutive calendar days (not "business days"), or until the end of their nonimmigrant validity period, whichever is shorter (the "maximum 60-day grace period").

The grace period begins on the day after the employment termination, which is typically determined by the last day wages or salary are paid.

However, as long as the worker timely files an eligible application to change nonimmigrant status, an adjustment of status application, or an application for an emergency employment authorization document before their nonimmigrant status expires, or finds a new job (with the new employer filing a new I-129 on their behalf), they may continue to remain lawfully in the United States.

If the worker is an eligible H-1B nonimmigrant and the employer timely files a new I-129, the worker may begin working immediately upon USCIS receipt of the application and continue to maintain H-1B status.

The 60-day grace period gives nonimmigrant workers time to maintain lawful status (including applying for a change of status). During this period, a person may change to a new nonimmigrant status by timely filing a non-frivolous application; even after the grace period and the current nonimmigrant status expire, they may continue to look for work within the United States. The grace period also gives certain spouses of nonimmigrant workers time to continue their own employment if they hold an employment authorization document or have employment authorization based on their status. During the grace period, eligible H-1B nonimmigrant workers may resume work immediately once the new employer properly files a new H-1B petition, without waiting for approval. Workers applying for jobs in other categories must wait for the new petition to be approved before starting work, but because premium processing is available, the approval wait is usually less than 15 days.

It begins on the day after the employment termination, which is typically determined by the last day wages or salary are paid.

USCIS will determine whether the grace period applies to a case when adjudicating an extension application, change of status application, adjustment of status application, or emergency employment authorization application. Petitioners and applicants should state in a cover letter that they request USCIS to exercise its discretion to grant a grace period of up to 60 days.

Yes, the maximum 60-day grace period applies to both voluntary and involuntary termination of employment.

During each I-29 validity period, you may be eligible for a grace period of up to 60 days. For example, if you are laid off by Company A, USCIS may exercise its discretion to grant you a grace period of up to 60 days and treat you as having maintained status. If you later obtain a new I-129 approval with Company B with a new validity period and are subsequently laid off, you may be eligible for another grace period of up to 60 days.

When USCIS exercises its discretion, it will consider the person to have maintained nonimmigrant status during the maximum 60-day grace period. That is, during the 60-day grace period, the H-1B holder's status remains H-1B.

As with any period of authorized stay, employment is prohibited during the grace period unless otherwise authorized. As long as the person maintains lawful stay (which may extend beyond the grace period), they may apply to change to another status that permits work, such as finding a new employer to file an I-129, changing to F1 (which allows on-campus part-time work), filing an adjustment of status application to apply for a work permit, or applying for an emergency work permit.

If the person's I-129 with that employer is still valid and they are rehired in the same position, they may resume work without further action. If rehired in a new or different position, an amended or new I-129 may need to be filed with USCIS to notify it of any material changes. If the employer has notified USCIS of termination of the I-129, a new I-129 must be filed with USCIS.

The grace period ends upon departure from the United States. If you leave the United States during the grace period, you must seek another immigration status in order to re-enter.

If a nonimmigrant worker is terminated while outside the United States with no notice period, or cannot return before the notice period ends, no grace period is available, and they must obtain another immigration status in order to reenter. If the worker can return to the United States before the notice period ends (i.e., before the termination date), a grace period may be granted at discretion.

Yes, if your spouse has an EAD or employment authorization incident to status, that authorization will remain valid during the grace period of up to 60 days.

The grace period applies only to individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents). Students may not accumulate more than 90 days of unemployment during OPT. STEM students may not accumulate more than 150 days of unemployment during OPT.

Rehired by the Original Employer or Changing to a New Employer

If the original employer decides to continue employing the person, has not notified USCIS of termination of the contract (which would automatically revoke the I-129), and the position remains the same, the person may resume work without taking any action. But if rehired in a new position, the original employer needs to file an amended or new I-129 petition.

H-1B holders may look for a new job during the grace period; once found, the new employer may immediately file a new H-1B petition (Form I-129) during the grace period to request an amendment or extension of H-1B status. Upon receiving the USCIS receipt, the employee may start the new job immediately without waiting for the H-1B transfer to be approved.

If the person has already filed an adjustment of status application (Form I-485) and the related valid immigrant visa petition (Form I-140) has been pending for at least 180 days, the related immigrant visa petition may be transferred to the same employer or a new employer, provided the new job is in the same or a similar occupational classification.

H-1B portability allows eligible H-1B nonimmigrants to change employers or "port" to a new employer and, after the new employer files a new H-1B petition (I-129) requesting an amendment or extension of H-1B status, begin working for the new employer immediately without waiting for the new petition to be approved. If the person is in a status other than H-1B, or uses the grace period to change status from H-1B to another status, they must wait for the petition associated with the new employer to be approved before starting employment under the new status. However, as described below, as long as the new I-129 or change of status application is "non-frivolous" and filed before the grace period ends (or within the authorized period of stay), the person may maintain lawful stay in the United States. Note also that premium processing can greatly shorten I-129 adjudication time.

No, a certified LCA must be submitted with the H-1B petition (I-129). The Department of Labor typically reviews and certifies the LCA within seven business days.

Change of Status

Timely filing of a non-frivolous change of status application "tolls" the accumulation of unlawful presence until the application is adjudicated, provided the applicant did not work unlawfully before filing or during processing, and maintained status before filing the change of status application.

For example, if a person files a non-frivolous change of status application before the maximum 60-day grace period ends, unlawful presence will not accumulate during adjudication even after the maximum 60-day grace period has passed. If the application is ultimately approved, the person's status will be changed, and they will be considered to have been in lawful stay throughout the pendency of the application. If the application is denied, unlawful presence begins to accumulate on the day after the denial notice is issued. See {https://gonglue.us/14973}

You may use the maximum 60-day grace period to apply for a change of status, and the following situations may apply:

• Change to a spouse's dependent status (e.g., to H-4, L-2). Certain dependents may be eligible for an employment authorization document (EAD), including spouses of E-1, E-2, E-3, or L-1 nonimmigrants (see the USCIS Policy Manual). In addition, H-4 may also be eligible for an EAD if certain requirements are met.

• Change to student status (e.g., F-1) or visitor status (B-1 or B-2). Note that under the regulations, B-1 and B-2 nonimmigrant visitors are specifically prohibited from engaging in 'skilled or unskilled labor' in the United States. Under the regulations, certain F-1 students may engage in limited employment. For more information, see our Change of Nonimmigrant Status page.

• Find a new employer under the same or a different status, with the new employer sponsoring a new or different nonimmigrant status for a new or different position. For example, depending on the specific circumstances, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 category. As long as you did not work unlawfully before or during the pendency of the application, a non-frivolous change of status application filed by a new employer will stop the accrual of unlawful presence days until the application is adjudicated. However, such an application itself does not grant employment authorization for the new position during the pendency, nor does it extend employment authorization if the original classification expires. Some applications may require an additional fee for premium processing. Potential pathways for noncitizen STEM professionals can be found on our Options for Noncitizen STEM Professionals to Work page.

A person may request that USCIS expedite adjudication of their Form I-539. If the specified USCIS expedite criteria are met, USCIS will consider all expedite requests on a case-by-case basis and has discretion to grant them.

Certain spouses of E and L nonimmigrants have status that itself permits employment; such persons may begin working once the change of status is approved (e.g., H1B -> L2). Other dependent statuses, such as H4, if eligible for employment authorization, require filing Form I-765 and may begin working only after obtaining an employment authorization document (EAD).

If the employer files an I-129 petition on the person's behalf and requests premium processing, USCIS will generally adjudicate the pending I-539 and I-129 together within the premium processing timeframe and issue a joint decision. This means I-129 adjudication will not be delayed by the existence of a pending I-539. The person does not need to specifically request expedite; the I-539 will also be given priority consideration. If USCIS approves the I-129 petition including the change of status, the person will generally be granted the nonimmigrant status requested in the I-129 (rather than the status requested in the I-539) and may begin working. In this situation, the person does not need to travel outside the United States to apply for a new work visa.

Yes, as long as the person intends to depart after the B1/B2 expires and continues to maintain a foreign residence without intending to abandon it, the I-140 will not affect their change to B1/B2 status.

Yes, it is permissible to look for a job while in B1/B2 status, but you may not work. Before starting any new job, you must change from B1/B2 status to a status that authorizes employment and obtain work authorization (a new I-129 approval, or an EAD application), see {https://gonglue.us/43803}. If the change of status is denied, or if the new job application requires consular or port-of-entry notification, the individual must leave the United States and reenter under an employment-authorized classification before starting the new job.

There is no appeal from a denial of Form I-539. However, if your case type falls within the appellate jurisdiction of the Administrative Appeals Office, your employer may appeal the denial of Form I-129 on your behalf. Your employer may also file a motion regarding the denial of your change of status or extension request (Form I-539). These appeals and motions must be filed using Form I-290B. Note that filing an appeal or motion does not stop the accumulation of days of unlawful presence. If the motion is granted, or if the I-129 is approved, the change of status/extension may also be approved, and you will not accrue unlawful presence.

Adjustment of Status

Some individuals may be eligible to file an immigrant visa petition (Form I-140) and an application to adjust status (Form I-485) concurrently. Examples of immigrant categories that allow self-petitioning include EB-1 individuals with extraordinary ability and EB-5 investors. The benefit of filing Form I-485 is that you can maintain lawful status while the I-485 is pending and obtain an employment authorization document (EAD).

Emergency EAD

If your employment-based I-140 has been approved and the following two conditions are met, you may apply for an emergency EAD valid for up to one year:

• According to the Department of State's visa bulletin, no immigrant visa number is available;

• You are facing an emergency situation.

In limited circumstances, USCIS may issue an employment authorization document (EAD) allowing certain noncitizens facing urgent situations to work for any U.S. employer. If you have no other options, applying for an emergency EAD may be an option for you to continue working in the United States. In compelling situations, an emergency EAD can help those who have an approved I-140 and face urgent circumstances but are not yet eligible to file an adjustment of status application or apply for an immigrant visa due to priority dates, restricted countries, or preference categories. More information on eligibility requirements and application procedures can be found on our "Employment Authorization in Compelling Circumstances" webpage.

During the grace period, USCIS considers you to remain in lawful nonimmigrant status. If you file a non-frivolous application during the grace period, you will not accrue unlawful presence after the grace period ends, even if the application remains pending. However, you may not work during this period unless otherwise authorized.

If the emergency EAD is approved, you will use that EAD to start working. If your I-94 has expired, you will no longer be in nonimmigrant status, but you will be considered lawfully present during the validity period of the EAD. However, if your emergency EAD application is approved and you work using that document or otherwise fail to maintain nonimmigrant status, you will not be able to change status within the United States.

The USCIS Contact Center will create and forward a service request on your behalf to consider expedited processing of your application. The reviewing office will contact you to obtain additional information needed to process the expedite request. You will receive a notice from USCIS informing you whether the expedite request is approved or denied.

If you hold an emergency EAD in the United States and your immigrant visa priority date becomes current, you generally cannot file Form I-485 to adjust status. Instead, you need to request that USCIS notify the Department of State's National Visa Center (NVC) so that your immigrant visa application can be processed abroad. For more information on immigrant visa processing, see the NVC Processing webpage.

If you hold an emergency EAD in the United States and your employer files a new I-129, your extension or change of status will not be approved. After obtaining approval under a new employment-authorized classification, you will need to apply for a visa and/or admission from outside the United States in order to start the new job.

Yes, your spouse and children may be eligible to apply for an emergency EAD. At the time of filing the emergency EAD application, they must be in a valid nonimmigrant status. Your spouse and children may file concurrently with you, but their applications can only be approved after your application is approved. The EADs granted to your spouse and children may not be valid beyond the validity period of your EAD.

Expedite Criteria

In some cases, you may be eligible to request expedited processing, such as when applying to change status to a work-authorized dependent status (H1B -> L2). For details, see the How to Make an Expedite Request page. Please note that if premium processing service is available, USCIS generally will not consider an expedite request.

Leaving the United States

Although the above options for extending the authorized period of stay exist, workers may still choose to leave the United States. For H-1B and O visa holders who choose to leave the United States after termination of employment, the H-1B employer must pay the worker's return transportation costs. In addition, for O visa holders, the employer and the O visa holder share responsibility for reasonable return transportation costs.

Once abroad, H-1B holders can look for other U.S. jobs and regain admission for the remainder of their H-1B status period. Those seeking other potentially eligible categories can complete the application or filing process abroad and seek reentry to the United States.