Just Got Laid Off From H-1B Job—Do I Have Any Grace Period or Can I Get Another Visa to Jobhunt?

Question

I've been working in the United States as a software engineer with an H-1B visa for more than a year now. My employer just informed me that my last day of work will be this Friday. Apparently, the company is going through a restructuring, and my job is being eliminated. Does my H-1B visa allow for any grace period, or will I be out of status or "illegal" after my job ends? Can I ask for another visa to look for a job?

Answer

We're sorry to hear you're losing your job. That became an especially common scenario after the start of the coronavirus (COVID-19) pandemic, which caused many businesses to struggle.

More generally speaking, you might have a few options to maintain lawful immigration status, as reviewed below. It's important that you do everything possible to maintain lawful status. If U.S. Citizenship and Immigration Services (USCIS) finds that you are "unlawfully present" in this country you could face harsh legal consequences that affect your future immigration prospects, particularly after six months go by.

To answer your first question, there is a 60-day maximum grace period for an H-1B worker once the employment ends. Therefore, if your job ends Friday, you will have a maximum of 60 days to arrange for another employer to submit an H-1B petition for you, change to another status, or depart the United States. The H-1B visa category requires you to be working and getting paid, as outlined in your employer's H-1B petition, in order to maintain lawful status. Once your employment ends, you are not maintaining status, but the regulation gives you up to 60 days to get your status in order.

Find Another Job in the United States Quickly

U.S. government regulations provide for a 60-day maximum grace period for unemployment between H-1B employers. As long as you are actively looking for a job and can show that you have submitted applications, corresponded with prospective new employers, or interviewed for new jobs, you are likely to get the full 60 days for your next H-1B employer to submit its petition for you.

On the other hand, if you do nothing for 59 days, and then suddenly have a petition submitted on day 60, USCIS might not approve the status extension part of the petition, and you might need to make a trip home to get a new H-1B visa in your passport before continuing to work for your new H-1B employer.

If it has been more than 60 days since the last H-1B job ended, and you are still in the United States, the safer course of action is to have the new employer file a visa petition without a request to extend your status. In this case, once USCIS approves the petition, you would travel outside the U.S., obtain an H-1B visa at the U.S. consulate abroad, and then return to the United States to start working for the new employer. The benefit with this option is that it avoids the question of whether you were maintaining status.

If You Have an H-1B Spouse: Change to Dependent H-4 Status

If you happen to have a spouse who also is working in the United States with an H-1B visa, you can file an application to change your status from H-1B to H-4 dependent. As long as your spouse is maintaining lawful H-1B status, you can remain here in H-4 status. This would give you time to apply for work authorization as an H-4 and then get a new job. Submit your H-4 change of status application as early as possible during your 60-day grace period.

Apply to a College or University and Change to F-1 Student Status

Again depending upon your situation and the time of year when you lose your job, you might be able to change to F-1 status to pursue another or a higher degree in a full-time academic program in the United States.

Apply for a B-2 Tourist Visa

Many people ask about filing an application to change from H-1B status to B-2 visitor status to remain in the United States to search for a new job. This is problematic, because searching for a job is not an appropriate "tourist" or visitor-for-pleasure activity. Also, if you find a new job before USCIS approves your B-2 status, you almost certainly will need to take a trip back to your home country to get a visa to reenter the United States in your new job status. USCIS will not process an H-1B petition for an extension of status if there is a pending B-2 application.

Only in limited circumstances is it even worth considering a B-2 tourist application and only after consulting with a licensed immigration attorney.

Remind Employer to Pay Your Return Transportation

The last option you have is to receive the cost of your return transportation to your last country of residence abroad. If an H-1B employer terminates an H-1B worker, the employer must offer to pay for a flight to allow you to return to your home country, or to your last country of residence abroad. If you leave the employer on your own, however, this requirement does not apply, and you will need to pay your own way.