USCIS posted to its website additional information and guidance for nonimmigrant workers who have been laid off.
When a nonimmigrant worker’s employment is terminated, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorized stay in the United States:
- File an application for a change of nonimmigrant status;
- File an application for adjustment of status;
- File an application for a “compelling circumstances” employment authorization document; or
- Be the beneficiary of a nonfrivolous petition to change employer.
If the worker is an eligible H-1B nonimmigrant and an employer timely files a new nonfrivolous H-1B petition on their behalf, the worker can begin work immediately after USCIS receives the petition and continue to maintain their H-1B status.
If one of these actions occurs within the up to 60-day grace period, the nonimmigrant’s period of authorized stay in the United States can exceed 60 days, even if they lose their previous nonimmigrant status. If the worker takes no action within the grace period, they and their dependents may then need to depart the United States within 60 days, or when their authorized validity period ends, whichever is shorter.
Maximum 60-Day Grace Period
- The maximum 60-day grace period starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.
- The 60-day grace period applies to the voluntary and involuntary cessation of employment.
The grace period also provides time for certain spouses of nonimmigrant workers to continue their own employment if they have an Employment Authorization Document or are employment-authorized incident to status.
- USCIS will determine whether the grace period applies to a case during the adjudication of a subsequent extension of stay petition, change of status application, adjustment of status application, or compelling circumstances employment authorization application. Petitioners and applicants should state in a cover letter that they are requesting that USCIS favorably exercise its discretion to grant the up to 60-day grace period.
- Nonimmigrant visa holders are eligible for the maximum 60-day grace period once during each authorized employer petition validity period.
- The grace period ends upon any departure from the United States. Individuals who depart the United States during the maximum 60-day grace period, must seek another immigration status that would permit re-entry.
More information from USCIS about the 60-day grace period, portability, change of status, adjustment of status, and departure from the United States is available online here.
Erickson Immigration Group will continue to share updates as more news is available. If you have questions about anything we’re reporting or case-specific questions, please contact your employer or EIG attorney.