Introduction
The 60-day post-termination grace period for H-1B professionals is one of the most consequential regulatory protections in U.S. employment-based immigration law. While H-1B status is traditionally tied directly to active employment, the grace period provides temporary relief to individuals who lose employment unexpectedly. The provision, incorporated into immigration regulations to address the realities of modern professional employment, offers critical time for H-1B workers to transition between employers, change status, or depart the United States lawfully.
However, the 60-day grace period is frequently misunderstood by both employers and employees. It is not automatic, not work-authorized, and not applicable in all situations. Moreover, misinterpretations may jeopardize future immigration filings, green card eligibility, consular processing, and even re-entry into the United States.
Legal Framework of the 60-Day Grace Period
A. Source of the Grace Period
The 60-day grace period is authorized under DHS regulations for H-1B and certain other non-immigrant classifications. It allows an individual who experiences an involuntary cessation of employment to legally remain in the United States while seeking new opportunities or filing immigration applications.
B. Regulatory Purpose
The intent of the regulation is to:
- Prevent abrupt loss of legal status due to unexpected job loss
- Provide flexibility to high-skilled professionals
- Facilitate portability between employers
- Reduce unlawful presence accumulation
The rule is specifically designed to protect the integrity of the high-skilled immigration system by allowing continuity of status when employment interruptions occur.
When the 60-Day Grace Period Applies
A. Involuntary Termination
The beneficiary must be terminated involuntarily. This includes layoffs, restructuring, project closures, or employer-initiated terminations. It does not require that the employer provide severance or benefits.
B. Valid I-94 Period
The grace period applies only if the beneficiary still holds a valid I-94. If the I-94 has expired, the grace period is not available.
C. Discretionary Nature
The grace period is discretionary. Although routinely granted, USCIS may deny the grace period if:
- The beneficiary violated status
- Fraud or misrepresentation occurred
- Unauthorized employment has taken place
- Serious compliance violations exist
When the 60-Day Grace Period Does NOT Apply
A. Voluntary Resignation
If the employee resigns voluntarily, USCIS may deny the grace period because the loss of employment was not involuntary.
B. Status Violations Before Termination
If the beneficiary was already out of status due to nonpayment of wages or job abandonment, the grace period may not be granted.
C. Expired I-94
If the I-94 expiration date has already passed, the grace period cannot extend or revive expired status.
Rights and Options During the 60-Day Grace Period
A. Filing an H-1B Transfer
The most common option is for a new employer to file an H-1B Change of Employer petition during the grace period. Under H-1B portability rules, once USCIS receives the properly filed petition, the beneficiary may begin work for the new employer.
B. Filing a Change of Status (COS)
Beneficiaries may file a COS to:
- B-1/B-2 (bridge status)
- F-1 Student Status
- H-4 Dependent Status
- Other eligible non-immigrant categories
This provides additional time to remain legally in the United States.
C. Filing an Extension with the Same Employer
Rare but possible if the termination is rescinded by the employer before USCIS revocation.
D. Departure from the United States
The grace period permits lawful departure without accruing unlawful presence or triggering re-entry bars.
Limitations of the 60-Day Grace Period
A. Grace Period Is Not Work-Authorized
Beneficiaries may not work during the grace period unless a new employer files an H-1B transfer and receipt notice is issued.
B. The Grace Period Cannot Be Extended
It is capped at up to 60 days, even if:
- The job search continues
- Pending petitions are delayed
- Market conditions are unfavorable
USCIS does not have authority to extend this statutory period.
C. Use Only Once Per H-1B Validity Cycle
Beneficiaries may use the grace period once per authorized period of stay, not once per termination.
Employer Obligations Related to the Grace Period
A. Mandatory Bona Fide Termination Requirements
Before the 60-day clock begins, the employer must:
- Notify the employee
- Notify USCIS to withdraw the H-1B petition
- Offer return-transportation costs for involuntary termination
Failure to perform these steps may delay the start of the grace period or cause legal confusion.
B. No Obligation to Pay During the Grace Period
Once bona fide termination is complete, the employer is no longer required to pay wages.
C. No Ability to Shorten or Cancel the Grace Period
Employers cannot limit the beneficiary’s right to seek alternative employment during the grace period.
Common Misunderstandings and Legal Risks
A. Belief That the Grace Period Allows Work
The grace period merely preserves lawful presence; it does not confer employment authorization.
B. Mistaking End of Project for Termination
Simply ending a project does not end H-1B employment. If wages stop without bona fide termination, the employer must pay back wages.
C. Incorrect Record Keeping
Failure to document the termination, USCIS withdrawal, and transportation offer can expose employers to DOL penalties.
D. Delayed Job Search by Beneficiary
Beneficiaries who wait until the end of the grace period may run out of time for filings.
Immigration Fleet Recommendations
Drawing from extensive experience handling H-1B transfers, terminations, RFEs, audits, and status-preservation filings, Immigration Fleet offers the following professional guidance:
1. For Employees
A. Act Immediately
Begin the job search on day one. A full 60 days is rarely needed, and timing is critical.
B. File a Bridge Application if Necessary
If an H-1B transfer is not ready, filing a B-1/B-2 COS preserves legal status.
C. Maintain Documentation
Keep copies of:
- Termination notice
- Pay records
- I-94
- Previous petitions
- Communications with employer
These may be required in future filings.
D. Avoid Unauthorized Work
Working without proper authorization undermines future immigration benefits.
2. For Employers
A. Follow All Steps of Bona Fide Termination
Document notice to employee, USCIS withdrawal, and return-transportation offer.
B. Maintain Transparent Communication
Clear communication reduces litigation and complaints.
C. Provide Beneficiary With Clear Status Information
A simple explanation of the grace period prevents confusion and unnecessary legal disputes.
D. Avoid Retaliatory Timing
Terminations following complaints or protected activities raise legal red flags.
E. Consult Immigration Professionals
Given the complexity of H-1B compliance, professional guidance reduces risk.
Conclusion
The 60-day H-1B grace period is a vital mechanism that protects high-skilled foreign professionals from abrupt loss of lawful status while ensuring a stable and predictable employment-based immigration system. Proper understanding and implementation of the grace period benefit both employers and employees.
For beneficiaries, the grace period provides a structured window to secure new employment, file status changes, or depart the country lawfully. For employers, compliance with bona fide termination procedures avoids wage liability and legal exposure.
Immigration Fleet strongly recommends that employers and employees treat the 60-day grace period as a serious legal interval requiring careful documentation, prompt action, and professional guidance. When implemented correctly, it serves as an essential safeguard ensuring fairness, continuity, and compliance within the H-1B ecosystem.
