H-1B Visa or Non-immigrant Workers may not be fully aware of their alternatives upon termination. Sometimes they assume erroneously that the only option for them is to exit the US within 60 days.
- Upon termination of employment of the non-immigrant worker either involuntarily or voluntarily, they do have some options. If eligible they can opt for any of the following to stay in the US for the authorized period:
- Apply for changing non-immigrant status
- Apply for status adjustment
- Apply for an ‘undeniable circumstances’ document for employment authorization /EAD
- Apply for the beneficiary of an employer change non-frivolous petition
The non-immigrant worker has to take any one of the above actions within the 60-day grace period. Their authorized stay period in the US can then exceed 60 days notwithstanding loss of their earlier non-immigrant status.
If they do not take any action within the 60-day period, then they may have to exit the US within 60 days along with dependents if any. They may have to exit even earlier if their authorized period is shorter.
Usually, the non-immigrant status is as per the approval of the Petition for a Nonimmigrant Worker – Form I – 129. Alternatively, it is as per approval of Application to Extend/Change Nonimmigrant Status – Form I-539 if after arrival.
The authorized stay period usually is inclusive of the duration in which the timely applications for non-frivolous petitions seeking status change or stay extension are under process with USCIS.
The Maximum Grace Period of 60 Days
US Immigration rules allow a discretionary grace period for H-1B Visa workers inclusive of dependents in which they are regarded as having sustained status in the same category upon termination of employment for a maximum of 60 days or till the approved non-immigrant validity, whichever is lesser. This is also known as the maximum grace period of 60 days.
However, the non-immigrant worker can nevertheless sustain their authorized stay period in the US if they timely file an application for non-immigrant status change if eligible.
Alternatively, they can also file an application for status adjustment, or EAD for compelling circumstances. They can also file an application for a change of employer if they have received the non-frivolous petition. Any of these applications have to be filed before the expiry of their non-immigrant status.
The eligible H-1B Visa worker can commence work instantly upon receipt of the fresh non-frivolous H-1B application on their behalf filed by the employer. In this way, the non-immigrant worker can continue maintaining their H-1B status in the US.
The Importance of the Grace Period of 60 Days
The terminated non-immigrant workers in the US did not have a grace period earlier than the policy change in 2016. The grace period of 60 days offers them the chance to retain their non-immigrant status.
Meanwhile, the grace period also offers non-immigrant workers the time to seek status change. It can permit them to carry on their job search in the US irrespective of the expiry of their existing non-immigrant status and the grace period. This is because they can sustain the authorized stay period if they timely file a non-frivolous petition for changing to a fresh non-immigrant status.
The grace duration also allows some spouses of H-1B Visa workers to continue working if they possess an EAD or are incident to status employment-authorized. During the grace period, the qualified non-immigrant worker can also start working again once a fresh employer appropriately submits an H-1B application instead of waiting for the approval of the fresh application.
If a worker is filing for employment in another category they have to wait to start working till the fresh application is approved. However, they can avail of premium processing in which their application is decided within 15 days.
The maximum grace period of 60 days commences on the day of the employment termination. This is usually determined by the last day for which the wage or salary payment is done.
Application Process for Grace Period Petition
The USCIS will decide if the grace period applies to your case while deciding on the subsequent petition for an extension of stay, status change, status adjustment, or EAD for compelling circumstances.
Applicants must specify in the cover letter that they have made a request to the USCIS to exercise its discretion favorably for approval of the grace period of 60 days. The grace period of 60 days may be applicable to involuntary and voluntary termination of employment.
How many times can a non-immigrant worker utilize the grace period?
Non-immigrant workers can utilize the grace period of 60 days only once for every authorized validity period of the employer petition.
For instance, if an H-1B Visa worker is terminated by an employer ‘A’ in the US; the USCIS can exercise its discretion favorably to approve a grace period. It can thus be considered that you have sustained the status for a maximum of 60 days.
If the same non-immigrant worker has a fresh approval of employer petition with a fresh validity period for an Employer ‘B’ and is terminated subsequently, they are qualified for a fresh grace period of a maximum of 60 days. This is during the period in which the petition is valid with the Employer B.
The grace period is thus actually tied to the employer. A fresh authorized employer petition approval implies a fresh grace period.
Nevertheless, in spite of the options specified here for an extension of the authorized stay period, the worker can decide to exit the US. In the case of O and H-1B workers who choose to exit the US upon involuntary employment termination, their employer has to make payment of reasonable expenses of travel to the last destination of overseas residence of the worker.
Further, in the case of O workers, both the petitioner and employer are severally and jointly liable for the reasonable expense of the worker’s return travel.  To know more about the H-1B grace period and alternatives contact Nationwide Visas Best Immigration Consultant in India.
