TL;DR — Key Takeaways
- H-1B workers generally have a 60-day grace period after employment ends to find a new employer, change status, or depart the U.S.
- You may transfer your H-1B to a new employer during the grace period under H-1B portability rules — the new employer must file a new H-1B petition.
- You may also apply to change to a different nonimmigrant status (such as B-1/B-2 visitor status) during the grace period.
- H-4 dependents are directly affected by the principal H-1B holder’s status change — they should also take action to maintain lawful status.
- H-1B wage level requirements are important because your employer must pay you the required wage for your position; failure to do so can affect your status.
Losing your job is stressful for anyone, but for H-1B visa holders, it comes with an additional layer of anxiety: What happens to your immigration status? Under federal regulations, H-1B workers who are terminated or laid off have a 60-day grace period to take action — whether that means finding a new employer to sponsor you, changing to a different visa status, or making arrangements to depart the United States.
Understanding your rights during this critical window can make the difference between maintaining lawful status and falling out of status. This guide explains the 60-day grace period rules, your options during the grace period, the impact on your dependents, and how H-1B wage level requirements factor into your employment.
What Is the H-1B 60-Day Grace Period?
The 60-day grace period is provided under 8 CFR § 214.1(l)(2). This regulation allows H-1B workers (and other nonimmigrant workers in certain classifications) a period of up to 60 days to remain in the United States after their employment has been terminated, either voluntarily or involuntarily.
Key details about the grace period:
- Duration: Up to 60 days from the date of termination, or until the end of your authorized H-1B validity period, whichever comes first.
- Automatic: The grace period begins automatically when your employment ends. You do not need to apply for it or receive approval.
- One per authorized validity period: You are entitled to one 60-day grace period per authorized validity period. If you have already used the grace period during your current H-1B validity, you may not receive another one.
- No work authorization: You are NOT authorized to work during the grace period (unless you have filed an H-1B transfer with a new employer — see the portability section below).
The regulation applies to certain nonimmigrant classifications including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, O-2, and TN. For the full regulatory text, refer to the USCIS Policy Manual.
What You Can Do During the Grace Period
The 60-day grace period is a limited but valuable window. Here is what you can do:
1. Find a New H-1B Employer (H-1B Transfer)
The most common action is to seek a new employer willing to file an H-1B petition on your behalf. Under H-1B portability provisions, you can begin working for the new employer as soon as the new H-1B petition is filed (not approved). This is often the fastest path to maintaining H-1B status.
2. Change to a Different Nonimmigrant Status
If you are unable to find a new H-1B sponsor within the grace period, you may apply to change to another nonimmigrant status, such as:
- B-1/B-2 visitor visa: This allows you to remain in the U.S. temporarily while you make travel arrangements or explore other options. Note that B-1/B-2 status does not include work authorization.
- F-1 student visa: If you plan to return to school, you may be eligible to change to F-1 status.
- Other work visa: If you qualify for a different work visa category (O-1, L-1, etc.), you may file a change of status.
3. Self-Petition for a Green Card
If you qualify, you may file a self-petition such as the EB-2 National Interest Waiver (NIW) or EB-1A extraordinary ability petition. While these do not provide immediate work authorization, filing during the grace period can be an important step in your long-term immigration strategy.
4. Prepare to Depart the United States
If none of the above options are available, you should make arrangements to depart the U.S. before the 60-day grace period expires to avoid accruing unlawful presence.
H-1B Portability: Changing Employers
H-1B portability (under INA § 214(n) and the AC21 Act) allows an H-1B worker to change employers without waiting for the new petition to be approved. This is one of the most important protections available to H-1B workers and is especially critical during the grace period after a job loss.
Requirements for H-1B Portability
To take advantage of H-1B portability, the following conditions must generally be met:
- You must be in valid H-1B status (or within the 60-day grace period) at the time the new petition is filed.
- You must not have worked without authorization in the United States.
- The new employer must file a non-frivolous H-1B petition (Form I-129) on your behalf.
- The new employer must have obtained a certified LCA from the Department of Labor for the new position.
Once the new H-1B petition is filed, you may begin working for the new employer immediately, even before USCIS adjudicates the petition. This means time is of the essence — the new petition must be filed while you are still within the grace period.
Tips for a Successful H-1B Transfer
- Start looking for a new employer immediately after learning of the job loss.
- Work with an immigration attorney to ensure the new petition is properly prepared and filed quickly.
- Maintain documentation of your employment termination date, as this establishes the start of the 60-day grace period.
- If possible, negotiate a later termination date with your current employer to extend your grace period.
Changing to a Different Visa Status
If finding a new H-1B employer within 60 days is not feasible, changing your nonimmigrant status may provide additional time in the United States.
Change to B-1/B-2 Status
The most common alternative is to file Form I-539 (Application to Extend/Change Nonimmigrant Status) to change to B-1/B-2 visitor status. Important considerations include:
- You must file the change of status application before the 60-day grace period expires.
- B-1/B-2 status does not authorize employment. You cannot work while in B-1/B-2 status.
- Pending I-539 applications generally allow you to remain in the U.S. while waiting for a decision, though USCIS policy on this can vary.
- Approval is not guaranteed, and you should be prepared to demonstrate that you intend to depart the U.S. or have a legitimate reason to remain temporarily.
Change to F-1 Student Status
If you plan to pursue further education, you may be able to change to F-1 student status by enrolling in a SEVP-certified school and filing Form I-539. You will need a Form I-20 from the school before filing.
Impact on H-4 Dependents
If you are an H-1B principal and you lose your job, your H-4 dependent family members (spouse and children under 21) are directly affected. H-4 status is tied to the principal H-1B holder’s status, which means:
- H-4 dependents share the same 60-day grace period as the H-1B principal.
- If the H-1B principal successfully transfers to a new employer, the H-4 dependents should file to extend or maintain their H-4 status based on the new petition.
- If the H-1B principal changes to a different status, H-4 dependents must also change their status accordingly.
- H-4 EAD holders (those authorized to work based on the H-1B principal’s approved I-140) will lose their work authorization if the principal’s H-1B status ends. Act quickly to preserve H-4 EAD eligibility.
It is critical to include your dependents in your immigration planning during the grace period. An immigration attorney can help ensure that all family members maintain lawful status.
H-1B Wage Level Requirements
While understanding your grace period rights, it is also important to be aware of H-1B wage level requirements, which play a central role in the H-1B program and can affect your employment.
Under the H-1B program, employers must pay H-1B workers at least the prevailing wage for the occupation in the geographic area where the work is performed, or the actual wage paid to similarly employed workers at the company, whichever is higher. The prevailing wage is determined by the Department of Labor and is based on four wage levels:
| Wage Level | Experience | Typical Percentile |
| Level 1 | Entry-level | 17th percentile |
| Level 2 | Qualified | 34th percentile |
| Level 3 | Experienced | 50th percentile |
| Level 4 | Fully competent | 67th percentile |
Wage level has become an increasingly important factor in H-1B adjudications. USCIS scrutinizes whether the wage level assigned to a position accurately reflects the complexity and requirements of the job. For more information on prevailing wage determinations, visit the Department of Labor’s Foreign Labor Certification page.
Why Wage Level Matters After Job Loss
If your previous employer was paying you at or near the minimum prevailing wage for your occupation, and you are seeking a new H-1B position, the wage level for the new position may differ based on the geographic area, occupation, and employer. Understanding wage level requirements can help you evaluate job offers and ensure that prospective employers are prepared to meet their obligations.
Maintaining Lawful Status: Key Considerations
Throughout the grace period, keeping several important principles in mind is critical:
- Do not work without authorization. Working without authorization (even as a freelancer or contractor) during the grace period can have serious immigration consequences, including bars on future visa approvals.
- File any applications before the grace period expires. Whether you are filing an H-1B transfer, a change of status, or another petition, it must be submitted to USCIS before the 60-day period ends.
- Keep records. Document your termination date, any communications with your former employer, and the dates of any new filings. These records may be important for future immigration applications.
- Beware of unlawful presence. If you remain in the U.S. beyond the grace period without filing a new petition or changing status, you may begin accruing unlawful presence, which can trigger bars on re-entry under INA § 212(a)(9)(B).
- Consult an immigration attorney promptly. An experienced attorney can help you evaluate your options, meet tight deadlines, and avoid costly mistakes.
How Bay Legal, PC Can Help
Navigating the immigration system can be complex, stressful, and high-stakes. At Bay Legal, PC, we guide individuals, families, and employers through every step of the immigration process with personalized attention and deep subject-matter knowledge. Whether you are applying for an H-1B visa, pursuing a green card, or exploring other immigration options, our team is here to provide strategic counsel tailored to your unique circumstances.
Contact us today to schedule a consultation. Call us at (650) 668-8008 or email intake@baylegal.com to get started.
Frequently Asked Questions
1. How long is the H-1B grace period?
The grace period is up to 60 consecutive days from the date your employment ends, or until the expiration of your authorized H-1B validity period, whichever is shorter.
2. Can I work during the 60-day grace period?
No, you cannot work during the grace period unless you have filed an H-1B transfer petition with a new employer. Once the transfer petition is filed, you may begin working for the new employer under H-1B portability rules.
3. Does the grace period apply if I resign voluntarily?
Yes. The 60-day grace period applies whether your employment ends due to termination, layoff, or voluntary resignation. The triggering event is the cessation of employment.
4. What happens if I cannot find a new job within 60 days?
If you cannot find a new H-1B employer within the grace period, you should either file to change to another nonimmigrant status (such as B-1/B-2) or make arrangements to depart the U.S. before the period expires. Remaining beyond the grace period without taking action may result in unlawful presence.
5. Can my employer revoke my H-1B after termination?
Yes. Your employer is required to notify USCIS when an H-1B worker’s employment ends. They may withdraw the H-1B petition, which does not eliminate your grace period but does formally end the employer-employee relationship for H-1B purposes.
6. Does the grace period restart if I get a new H-1B employer?
Yes. If a new employer successfully files an H-1B petition on your behalf and your new authorized validity period begins, you would be entitled to a new grace period if that employment also ends.
7. What about my H-4 spouse’s EAD during the grace period?
H-4 EAD work authorization is tied to the H-1B principal’s status. During the grace period, the H-4 EAD may still be technically valid, but H-4 dependents should not continue working if the principal’s H-1B status has ended. Consult an attorney for guidance on your specific situation.
8. Can I apply for unemployment benefits during the grace period?
Eligibility for unemployment benefits is determined by state law, not immigration law. Some H-1B workers may qualify for state unemployment benefits if they meet the state’s eligibility requirements and have paid into the unemployment insurance system. Check with your state’s unemployment agency.
9. Is the 60-day grace period guaranteed?
While the regulation provides for a grace period of up to 60 days, USCIS has discretion in certain circumstances. In practice, the 60-day period is generally available, but it is important to act promptly and not assume you can wait until the last day.
10. Should I leave the U.S. immediately if I lose my H-1B job?
Not necessarily. You have up to 60 days to explore your options. Use this time to pursue a new H-1B sponsor, explore other visa options, or consult with an immigration attorney. Leaving immediately is not required if you are within the grace period.
Disclaimer
Attorney Advertising. This article is for general informational purposes only and does not constitute legal advice. Each immigration case is unique, and results will depend on the specific facts of your situation. Past results do not guarantee future outcomes. For personalized legal guidance, contact Bay Legal, PC. Principal Office: Jayson Elliott, Esq., Bay Legal, PC, 667 Lytton Ave Suite 3, Palo Alto, CA 94301.
