Nonimmigrant workers have options if they have been laid off. In general, employment-visa holders in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications can remain in the U.S. for a maximum of 60 days following termination of employment. While many may be aware of this authorized grace period, there are other options as well. Whether employment ends voluntarily or involuntarily, a nonimmigrant worker may qualify for an extended stay in the U.S. using one of the below options:

  • File a Change of Nonimmigrant Status
  • File for Adjustment of Status
  • File for a “compelling circumstances” employment authorization document
  • File a nonfrivolous petition to change employers in the same classification

If no action is taken within the 60-day grace period following the end of employment, or before their I-94 expires, whichever is sooner, the worker and their dependents are required to leave the U.S.

Typically, nonimmigrant status in one of the above-mentioned categories is based on an approved Form I-129, Petition for a Nonimmigrant Worker or a subsequently approved Form I-539, Application to Extend/Change Nonimmigrant status after admission. In either case, if the employee timely files for a nonfrivolous petition or an application requesting a change of status or extension of stay, they may be able to stay in the U.S. while their request is pending with U.S. Citizenship and Immigration Services (USCIS).

Terms of Maximum 60-day Grace Period

For a nonimmigrant worker with an E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN visa, a maximum 60-day grace period following termination is generally available. You do not have to separately apply for a grace period, but the validity of the grace period will be determined during any subsequent petition or application which relies on such a grace period for maintenance of status purposes. This grace period extends to the visa holder dependents. If the authorized nonimmigrant validity period (I-94 expiration date) is sooner than the 60-day grace period, then the nonimmigrant and their dependents must leave the U.S. prior to the expiration date. If the worker qualifies, they can apply to preserve their period of authorized stay in the U.S. They must timely file, prior to the end of eligibility, for a different status.

For eligible H-1B nonimmigrant visa holders, if a new employer files an H-1B transfer within the 60-day grace period, work authorization is immediately available after USCIS receives the petition. The worker continues with their H-1B status. This option is beneficial as work authorization begins upon receipt of the petition, rather than approval. This minimizes the interruption to work authorization.

USCIS determines if the worker is eligible for the 60-day grace period during adjudication of a subsequent filing. It’s important to request that the grace period is granted to the worker when submitting the new filing. The 60-day grace period begins the day following the date of termination. The grace period is available for each authorized employer petition validity period. In other words, the worker may be eligible for multiple 60-day grace periods, limited by the number of employer petition validity periods.

If the nonimmigrant worker holds an H-1B visa and finds new H-1B employment within the 60-day grace period, work authorization resumes when the new employer submits the petition to USCIS on the worker’s behalf. This portability is unique to the H-1B, with employment authorization available upon submission of the new H-1B petition. However, if the worker is not an H-1B holder, the employer’s petition must be adjudicated prior to starting the new role.

Change of Status

There are benefits to filing a change of status. Timely filing of a change of status will stop the unlawful presence accrual until the filing is adjudicated, with some requirements. Applicants must not work without authorization either prior to the application filing or while the filing is in pending status. Further, legal status must be maintained prior to filing the request for change of status.

If a qualifying individual files a non-frivolous application to change status prior to the end of the 60-day maximum grace period, no unlawful presence will be accrued while the application is pending, even if the 60-day grace period ends during that period. If the change of status is approved, the individual is considered in an authorized stay for the entire time the application is pending. If the application is denied, the accrual of unlawful presence begins the day after the denial decision.

Options to apply for a change to nonimmigration status during the 60-day grace period include the following, dependent on eligibility requirements:

  • Changing status to become a dependent of a spouse. Employment authorization may be available to some individuals who are in a dependent nonimmigrant status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. In some cases, spouse of H-1B workers may qualify to request employment authorization, with some requirements.
  • Applying for a change to student status, F-1, or visitor status, B-1 or B-2. It’s important to note that B-1 and B-2 nonimmigrant visitors are not eligible for employment of any kind in the U.S. However, some F-1 students may qualify for limited employment options.
  • Individuals can look for a new employer-sponsored nonimmigrant visa in the same or different status. As an example, depending on eligibility, an L-1 visa holder may qualify to apply for new employment under the TN, E-3, or H-1B1 visa. Timely filing of a nonfrivolous change of status by a prospective employer stops the accrual of unlawful presence until the petition is adjudicated, with similar requirements as above. Employment is not allowed while the petition is pending. Noncitizen STEM professionals my qualify for other options.

Adjustment of Status

Individuals with an EB-1 Extraordinary Ability or EB-5 Immigrant investor visa may be eligible to file a self-petitioned immigration visa petition along with their adjustment of status application. Workers with a pending adjustment of status application can generally stay in the U.S. in a lawful status and receive employment authorization while their applications are pending. Some requirements apply.

Compelling Circumstances Employment Authorization

USCIS has the option to issue an Employment Authorization Document (EAD) for noncitizens in compelling circumstances. The beneficiary of the visa is allowed to work for any U.S. employer. The compelling circumstances visa may be applied for if there are no other options available to the individual. Individuals who already have an approved I-140 and face compelling circumstances but are not eligible to file an adjustment of status or apply for an immigration visa may be eligible to request the compelling circumstances EAD.

The one-year compelling circumstances Employment Authorization Document (EAD) may be available to beneficiaries of an approved employment-based immigration visa petition. To qualify, individuals must:

  • Not have the option to apply for an immigration visa through the Department of State Visa Bulletin, and
  • Be facing demonstrable compelling circumstances.

The compelling circumstances EAD is meant to help qualifying individuals on a path to lawful permanent resident status. This is a discretionary stopgap measure only. If a compelling circumstances EAD is granted, the nonimmigrant status is no longer maintained. The beneficiary begins a period of authorized stay and does not accrue unlawful presence during the EAD validity period.

Leaving the United States

Individuals may choose to leave the U.S. The H-1B employer must pay for reasonable transportation costs for the individual to return to their last foreign residence if employment termination was involuntary. The O employer and O petitioner are held jointly and severally liable for the same costs. Once back in their last foreign residence, these individuals are eligible to again look for U.S. employment and readmission to the U.S. for the duration of their existing H-1B status. If an alternate visa is sought, the typical requirements of applying for that visa is followed.

As always, if you have questions about voluntary or involuntary termination of employment with any visa type, contact us. Our team of attorneys are experienced in employment-based immigration, and how it affects dependents. We work with our clients in their specific situations to ensure they get the right advice to optimize the odds of a successful outcome.

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