What is an H-1B visa grace period, and how long do I have to transfer my H-1B to a new employer after getting terminated?

By: Lana Morgan

What is a grace period for an h-1b visa?

The H-1B program provides a 60-day grace period to employees who are laid-off, terminated, or resign from their position to find a new job or apply for a change of status. H-1B visa holders and their H-4 dependents maintain valid nonimmigrant status during the grace period, which begins immediately after the H-1B worker’s last day of employment.

Foreign nationals can remain in the US beyond their 60-day grace period if they either (1) find a new employer that can file an H-1B visa transfer petition, (2) change to dependent status if they have a spouse working in the US on an H-1B or L visa, or (3) find an employer to sponsor them on a different visa type.

H-1B workers should note that they cannot travel internationally during their grace period.

requesting an h-1b grace period 

There is no form to request an H-1B grace period. When an H-1B transfer or change of status petition is filed for the beneficiary, a grace period is automatically requested. The petitioner will need to explain the beneficiary’s job loss and provide related evidence.

who does not qualify for an h-1b grace period?

While United States Citizenship and Immigration Services (USCIS) may permit a 60-day grace period for beneficiaries who quit or resign from their jobs, the agency could deny the grace period for beneficiaries who do not have convincing evidence of hardship. Thus, H-1B beneficiaries should avoid resigning from their jobs without legitimate justification.

The Department of Homeland Security (DHS) may also deny or shorten the grace period for workers who accrue unlawful presence in the United States, perform unauthorized employment, or similar actions.

transferring to a new employer

A new employer will have to complete the sponsorship process again to complete the H-1B transfer. The employer is required send a I-129 which gets reviewed and approved by USCIS. Luckily, this new H-1B petition is not entered into the lottery and the worker can transfer to the new employer at any time.

changing to dependent status 

Those who were previously on an H-1B visa may maintain authorization to work in the US if their spouse is on their own H-1B visa and can claim them as a dependent.

H-1B beneficiaries can sponsor their spouse and children under the age of 21 on H-4 visas. Spouses can be authorized to work in the US by filing Form I-765, Application for Employment Authorization. Once the Form I-765 is approved, the spouse will receive an Employment Authorization Document card.

conclusion

Contact your trusted Chugh, LLP attorney for help on nonimmigrant visa petitions.