Fact pattern: Our top candidate is on H-1B status and his prior job was terminated. He is on his 60-day grace period and anxious to start working for us. How does the H-1B 60-day grace period work?
What do we need to know to hire this candidate?
Here are some key things to know about the 60-day grace period.
What is the 60- day grace period?
First, let me say – this is a good regulatory creation that facilitates the retention and change of employer for skilled noncitizen workers such as those in H-1B status after cessation or termination of a prior employment.
Prior to the creation of the 60-day grace period, if an H-1B employee was terminated, they had 10-days to depart the U.S. or likely be found in violation of their status. Under this rule, if the employee has a valid I-94 they can apply for employment with another employer and have the petitioning employer file a new H-1B for them or seek a new nonimmigrant status within the 60-day window.
During the grace period, eligible foreign nationals are:
– allowed to remain legally in the U.S. for up to 60 consecutive days after the employment is terminated, or until the end of the current I-94 authorized stay (whichever is shorter),
– considered in “status” (this also applies to their dependants) but not authorized to work, and
– able to prepare to depart the U.S., apply to transfer to another employer), or apply to change to another immigration status (such as B-1/B-2 or student F-1)
This grace period is available only once during each authorized validity period.
The timing of the process is tight and the granting of this grace period is at USCIS’ discretion. If USCIS shortens or denies this period -the foreign national could be automatically found “out of status”.
Thus, it is NOT recommended to take this process lightly or the H-1B grace period rule for granted.
Here is what the rule says:
“An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.”
Here is an example of how it applies:
If the foreign worker is terminated on 1/1/22 and their I-94 expires 1/15/22, then their grace period expires 1/15/22 (end of the currently authorized stay).
If the foreign worker is terminated on 1/1/22 and their I-94 expires 12/15/22, then their grace period expires 3/2/22 (60 days from 1/1/22).
Who is eligible for a 60-day grace period?
As noted in the rule above, those in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status are eligible for the 60-day grace period following termination of employment (by either employee or employer).
When does the 60-day grace period begin?
It begins on the day the worker is laid off, the job terminated or the worker resigned. Typically, we use the termination letter or last pay statement to determine when the 60-day grace period starts.
When can the H-1B candidate start working for the new employer?
The H-1B holder can start working for the new employer after the new H-1B petition has been filed and USCIS issues the notice of receipt of the H-1B filing. This MUST occur prior to the end of the 60-days. The receipt notice serves as a combination List A document for Form I-9 purposes. The candidate can start working upon receipt of USCIS’ receipt notice.
What if the H-1B transfer process exceeds the 60-day grace period?
The candidate is in valid status until the end of the 60-day grace period OR the expiration of the I-94, whichever is shorter. Once the candidate reaches the 60-day OR the end of the I-94 authorized stay, she/her will be out of status and unable to change employers in the U.S.
For example, if the H-1B petition is not filed using premium and the employer receives notification of the USCIS receipt on day 61, the candidate is now out of status. This requires a complex analysis and strategic team decision to be evaluated on a case-by-case basis but which also could have been prevented with the usage of premium processing.
If the candidate has an expired I-94, can they utilize the 60-day grace period?
No. To use the full 60-day grace period, the candidate must be “maintaining status” which means that they have to have a valid I-94 covering the 60-day period and, other than the termination of the employment, they cannot have any other violations of status. If the I-94 has less than 60 days of valid status left, the candidate will have up until the end date of the I-94 as a grace period.
What are some key factors to consider?
- The use of Premium Processing is more relevant, as the foreign worker might otherwise fall out of status and be ineligible to work during the process.
- If the candidate travels abroad during these 60-days, they can’t re-enter until they have a new H-1B petition approved and in some cases might also need a new visa stamp.
- The granting of the 60-day period is at USCIS’ discretion and not automatic which creates additional due diligence with these filings.
- The 60-day grace period can only be used “once during each authorized validity period” i.e. once per H-1B approval.
We have used this favorable 60-day rule to facilitate the hiring of many foreign nationals following the termination of their prior employment. If you have questions or need assistance with this process, please contact us.
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