Key Takeaways:
- Nonimmigrant workers have a 60-day grace period post-termination to explore options to maintain their U.S. stay legally.
- Eligible applications during this period include changes of status, adjustments, employment authorizations, or finding new employment.
- This buffer allows for maintaining nonimmigrant status, easing transitions without immediate departure if timely actions are undertaken.
When nonimmigrant workers face employment termination, they often find themselves under significant stress, unsure of their options. Many mistakenly believe they must leave the United States immediately. However, there are several pathways nonimmigrant workers can explore to maintain their authorized stay in the U.S., even after their employment ends. This guide aims to shed light on those options, ensuring nonimmigrant workers understand their rights and the necessary steps to remain legally in the country.
What is the Maximum 60-day Grace Period?
Nonimmigrant workers classified under E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN (and their dependents) can utilize the so-called “maximum 60-day grace period.” This period begins the day after employment termination and allows workers to be regarded as maintaining their status for up to 60 days or until the end of their authorized nonimmigrant validity period, whichever is shorter. This grace period provides a crucial buffer, allowing them to take action to stay legally.
Under this grace period, workers can timely file:
- An application for a change of nonimmigrant status,
- An application for adjustment of status,
- An application for a compelling circumstances employment authorization document,
- A non-frivolous petition to change employer.
Eligible H-1B nonimmigrants can immediately start working with a new employer once the USCIS receives the new H-1B petition, maintaining their H-1B status during this grace period.
Why is the 60-Day Grace Period Important?
Before regulatory changes in 2016, nonimmigrant workers had no grace period following employment termination. This up-to-60-day grace period allows them to maintain their nonimmigrant status or change their status while continuing their job search within the United States.
This period also benefits spouses of nonimmigrant workers if they possess Employment Authorization Documents (EAD) or are employment-authorized incident to status. H-1B nonimmigrant workers have the added advantage of commencing employment with a new employer once the new petition is filed.
When Does the 60-Day Grace Period Start?
The grace period begins the day after termination of employment, which is typically the day after the last salary or wage payment.
How to Apply for the Grace Period?
You don’t “apply” for the grace period per se. Instead, USCIS determines eligibility during the adjudication of any subsequent petitions or applications, such as an extension of stay, change of status, or adjustment of status application. Clearly state your request for the grace period in the cover letter of your application.
Does the Grace Period Apply if I Voluntarily Leave My Job?
Yes, the 60-day grace period applies to both voluntary and involuntary terminations of employment.
Can I Use the Grace Period Multiple Times?
You can use the 60-day grace period once during each authorized employer petition validity period. For example, if terminated by Employer A and granted the grace period, a subsequent termination by Employer B during a new validity period might make you eligible for another grace period.
What is My Status During the Grace Period?
USCIS may consider you to be maintaining nonimmigrant status while exercising discretion during the maximum 60-day grace period.
Can I Work During the Grace Period?
Employment is generally prohibited during the grace period unless you obtain new work authorization through mechanisms such as portability, change of status, adjustment of status, or compelling circumstances EAD.
What if My Employer Rehires Me During the Grace Period?
If your petition with your previous employer remains valid, and you’re rehired in the same position, you can resume work immediately. If rehired in a different position, your employer may need to file an amended or new petition. If the employer had notified USCIS of your termination, requiring an automatic revocation of petition approval, a new petition would need to be filed.
Can I Travel During the Grace Period?
Traveling outside the U.S. ends the grace period. To re-enter, you must seek a new immigration status that permits entry.
What If My Employment Is Terminated While I Am Outside the U.S.?
If terminated while outside the U.S. and the notice period ends before you can return, the grace period doesn’t apply. You must seek another status for reentry. If able to and do return before the termination is effective, the grace period may still apply.
Is My Dependent Spouse’s Employment Authorization Document (EAD) Valid During the Grace Period?
Yes, if your spouse has an EAD or employment authorization incident to status, the authorization remains valid during the grace period.
What Happens to My OPT EAD If My Employment is Terminated?
The 60-day grace period only applies to specific classifications (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN). For F-1 students on post-completion OPT, maintaining status depends on employment. You cannot accrue more than 90 days of unemployment during the post-completion OPT or more than 150 days during an OPT period including any subsequent 24-month STEM extension.
Portability of Employer Petitions: Can I Port to a New H-1B Employer During the Grace Period?
Eligible H-1B nonimmigrants can begin working for a new employer upon proper filing of a new H-1B petition without needing to wait for approval. For other statuses, a change must be approved before starting new employment. Premium processing can expedite this process.
Change of Status: How Do I Change My Status?
Filing a non-frivolous change of status application before the 60-day grace period ends stops the accrual of unlawful presence. If approved, the individual’s status changes and covers the entire time the application was pending. Denial leads to accrual of unlawful presence the day after the decision.
What Are the Options to Change Nonimmigrant Status?
- Dependant of a Spouse: Change to statuses like H-4, L-2. Some dependents can get employment authorization.
- Student or Visitor Status: Change to F-1 or B-1/B-2. Note: B-1/B-2 status precludes labor.
- New Employer-Sponsored Status: Change from L-1 to TN, E-3, or H-1B1 requires a non-frivolous petition from a prospective employer.
Can My Change of Status Petition Be Expedited?
Expedition requests are considered case-by-case based on specific criteria. Premium processing service availability limits expedites for certain applications.
How Soon Can I Start Working If I Change Status to Employment-Authorized Dependent?
For some spouses of E and L nonimmigrants, employment may begin upon status change approval. Others may need to file Form I-765 for employment authorization.
Portability and Employment Authorization: What Happens If I Have a Pending or Approved I-140?
Changing status to B-1/B-2 status is permissible with a pending or approved I-140, provided there’s intent to depart post-stay and a maintained foreign residence.
Can I Job Search on B-1/B-2 Status?
Yes, you can search and interview, but not engage in employment. Approval of a change of status must precede employment initiation.
Adjustment of Status: How Does It Work?
Eligibility may allow concurrently filing a self-petitioned immigrant visa and adjustment of status application. Categories include EB-1 and EB-5. Pending applications often maintain authorized stay with potential EAD issuance.
Compelling Circumstances Employment Authorization Document: What If No Other Option Is Available?
Workers with approved I-140 facing compelling circumstances can seek a compelling circumstances EAD. This serves as a temporary solution pending lawful permanent residency eligibility. Check USCIS’s Employment Authorization in Compelling Circumstances page here for more details.
Departure from the United States: Is It an Option?
If all other options fail, departing the U.S. remains the final step. Employers must cover return costs for involuntarily terminated H-1B or O workers. H-1B holders may seek reemployment and re-admission to the U.S. at a later date.
In conclusion, the termination of employment for nonimmigrant workers in the U.S. doesn’t immediately necessitate departure. By understanding the options available within the 60-day grace period, individuals can navigate this transitional phase effectively and lawfully. Whether exploring a change of status, adjustments, or compelling circumstances EAD, being well-informed equips nonimmigrant workers to make timely decisions that best suit their circumstances.
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Glossary of Immigration Terms
- Nonimmigrant Worker
- A foreign national authorized to work in the U.S. temporarily under specific visa classifications such as H-1B, L-1, or TN.
- 60-Day Grace Period
- A period allowing certain nonimmigrant workers to maintain their status for up to 60 days after employment termination, providing time to seek new employment, change status, or prepare for departure.
- Change of Nonimmigrant Status
- The process of altering one’s visa classification to another type (e.g., from H-1B to F-1) while staying in the U.S., often through a formal application to USCIS.
- Adjustment of Status
- A procedure that allows individuals in the U.S. to apply for lawful permanent resident (green card) status without having to return to their home country for a visa interview.
- Employment Authorization Document (EAD)
- A document issued by USCIS that grants nonimmigrants the legal right to work in the U.S. under specific conditions, such as compelling circumstances or as a dependent of a visa holder.
This Article In A Nutshell:
Facing job loss as a nonimmigrant worker in the U.S. can be distressing. Fortunately, a 60-day grace period post-termination offers options like status changes or job searches. Spouses with EADs can work during this period. Understanding these rights ensures a smoother transition, empowering workers to make informed choices within this crucial window.
— By VisaVerge.com
