Navigating Layoffs and the USCIS 60-Day Grace Period

In today's ever-changing job market, it is essential to be aware of the resources available when facing layoffs. Fortunately, USCIS regulations allow for a 60-day grace period following the termination of employment for certain nonimmigrant workers, including those in H-1B, E-1, E-2, E-3, L-1, H-1B1, O-1, and TN status. This grace period can be a valuable tool for both employees and employers, providing some breathing room to consider the next steps during uncertain times.

The 60-day grace period also allows employers a window of time to prepare and file the paperwork necessary to hire these incredibly skilled and talented foreign nationals. Whether it's pursuing a new job opportunity in the U.S., changing their immigration status, or making the decision to leave the country, this period offers a brief respite for crucial decision-making.

However, there are essential points to keep in mind:

  1. Starting Point: USCIS has clarified that the 60-day grace period starts the day after the termination of employment. Determining this date usually relies on the last day for which a salary or wage was paid. This means that those 60 days can pass by quickly.

  2. Actual Duration: It's important to note that you might not have the full 60 days grace period. Remember, the grace period is the shorter of 60 days, or when the current I-94 expires. This means the grace period could expire sooner if your current I-94 expires before the 60-day mark. For employers, especially those filing an H-1B transfer, keeping track of the employee's employment status, last day of employment, and current I-94 expiration date is vital. It is crucial to file the necessary paperwork before the grace period expires, if there is one.

  3. H-1B Portability: The concept of H-1B portability, which allows foreign nationals to start working for a new employer without waiting for H-1B petition to be approved, only applies to H-1B visa holders. It does not extend to other visa classifications such as TN, E-3, H-1B1, etc. Additionally, H-1B portability is not an option when you're applying for a change of status from another visa category (e.g., H-4 to H-1B).

The 60-day grace period can provide a safety net during the stress of job loss and provides employers with some flexibility when hiring individuals in transition. However, it's important to use this period correctly and adhere to all the requirements outlined by USCIS.

In times of economic uncertainty, understanding these regulations can make a significant difference. Each situation is unique so it is best to speak with a qualified immigration attorney to determine how to best move forward. If you need help navigating the immigration process with confidence, please contact us today to get the process underway!

For more information on what options may be available to you after an unexpected layoff, please read our blog post "I Lost My Job on H-1B (or Other Non-Immigrant Visa Status): What Are My Options?"

As always, the above information is for educational purposes only and is not legal advice. Please speak with a qualified immigration lawyer before taking action. We are immigration lawyers in Richmond, VA but we serve clients throughout the U.S. and around the world. You can call us at 804-396-3412 or send us an email at We look forward to hearing from you!