U.S. Citizenship and Immigration Services clarified options available to individuals with employment-based visas after termination of employment. Options to the 60-day rule in which individuals must find employment are clarified, including options to remain in the U.S. after the 60-day grace period for nonimmigrant workers.

If employment has been voluntarily or involuntarily terminated, a nonimmigrant visa worker has the following options:

  • File an application for a change of immigration status;
  • File an adjustment of status;
  • File for a “compelling circumstances” employment authorization; or
  • Gain a nonfrivolous petition to change employer.

If any of the above filings or updates are completed within the 60-day grace period, the individual may be eligible to remain in the U.S. after the grace period has ended, even if nonimmigrant status is lost. However, if no action is taken within the 60-day grace period, departure from the U.S. may be required. Qualifying individuals may remain in the U.S. through the 60-day grace period or the end of their authorization period, whichever is shorter.

Individuals qualifying for the 60-day grace period include workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, along with their dependents. The above-noted length of stay applies to all in this category.

H-1B beneficiaries may begin new employment as soon as an updated H-1B petition is filed. Approval of the petition is not required for the individual to continue working. If the worker is filing for a different classification, the new visa must be approved prior to starting employment. If the employer rehires the same H-1B visa holder in the same role, the individual may resume work at any time. However, if the employer notified USCIS of the termination, the employer would need to file a new petition with USCIS. If the individual is rehired in a new role or the position has changed, an amended or new petition may be required.

The 60-day grace period begins the day after termination of employment. Generally, the last day a salary or wage was paid for the performance of work requirements is considered the final date of employment. Individuals must apply for an extension of stay petition to qualify for the grace period. USCIS recommends including a statement in the cover letter of the filing that specifies asking for approval of the 60-day period.

Individuals may not work during the 60-day grace period unless authorized. However, individuals with B-1 or B-2 status may search for employment, including participating in the interview process. B-1 or B-2 holders may not start employment without an approved employment-authorized status.

If you have questions about the 60-day grace period, your H-1B, questions about nonimmigrant workers, or any other employment-related visa issue, contact us at ILBSG. We actively monitor ongoing updates to ensure our clients get the right advice for their particular situations.

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