I’ve been laid off from my H-1B job: do I have a grace period?

The short answer is, no.  While an H-1B employee has 10 days to leave the U.S. after the expiration of H-1B status, the“10 Day Rule” is only triggered upon expiration of H-1B status and not upon terminations prior to the H-1B expiration date. If you are terminated from your H-1B position, your options are to:

 Depart the United States within a reasonable period (the regulations don’t specify what is “reasonable” under the circumstances);

 Change your status to another nonimmigrant category (such as B, F-1, H4, etc.)  before the last date of employment;

 File a change of employer petition and request for extension of stay before the last day of employment along with pay stubs showing that you’ve been maintaining status.  If your change of employer petition is filed after the date of termination, you will not be eligible for an extension of stay.  In that case, you may file a change of employer petition, and then upon approval of that petition, you will need to depart the U.S., apply for a new H-1B visa at a U.S. consulate abroad and then re-enter the U.S.  You will not be subject to the H-1B numerical cap in either situation.

 Some general advice: work with your employer to see if the employer is willing to restructure the date of termination so as to allow you to remain in H-1B status for a longer period of time.  Please note that what determines whether or not you are out of status is the actual date of termination, not whether you are receiving severance payments from the employer.  Continuing to receive compensation from your employer will not maintain your status if the date of termination has already occurred.  Lastly, consult with an immigration attorney.  Falling out of status can have far-reaching implications for your future in the U.S.  Make sure that you have all of the information you need to make the best decisions possible.

Tags: change of employer, extension of stay, H-1B, H1b, layoff, termination

Gali Gordon