H-1B workers who have been laid off can stay beyond 60 days in US, says USCIS

Employees on H-1B visas who have been laid off have the option of staying in the US even beyond 60 days, the US Citizenship and Immigration Services (USCIS) reveals. Tech companies like Google, Meta, Apple, Dell, Twitter, Amazon and Microsoft, among many others, have fired thousands of non-immigrant employees living in the US, including many Indians. There is a general assumption that the laid-off staffers have to leave the US within 60 days. But the USCIS has clarified on this in its latest statement.

“When non-immigrant workers are laid off, they may not be aware of their options and, in some cases, may wrongly assume that they have no option but to leave the country within 60 days,” stated the USCIS in its latest release.

The tech industry continues to grapple with lay-offs, with news of new job cuts surfacing every month. So far, a total of 237 tech companies have laid off 58,499 employees in 2024.

WHAT SHOULD LAID-OFF H-1B VISA HOLDERS DO TO STAY IN US

According to the press release, when a non-immigrant worker’s employment ends, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorised stay in the United States:

File an application for a change of non-immigrant status;
File an application for adjustment of status;
File an application for a ‘compelling circumstances’ employment authorisation document; or
Be the beneficiary of a non-frivolous petition to change employers.

If a non-immigrant takes any of these actions during the 60-day grace period, they can stay in the United States for more than 60 days, even if they lose their previous non-immigrant status.

But if they don’t take any action during this time, they and their dependents might have to leave the US within 60 days, or when their authorised period ends, whichever comes sooner.

Additionally, H-1B non-immigrants may begin working for a new employer as soon as the employer properly files a new H-1B petition (Form I-129) requesting to amend or extend H-1B status with the USCIS, without waiting for the petition to be approved.

The timely filing of a non-frivolous application to change status will “toll,” or stop, the accrual of unlawful presence until the application is adjudicated, if the applicant did not work without authorisation, either before the application was filed or while it was pending, and the applicant maintained their status prior to the filing of the request for change of status.

H-1B VISA HOLDERS CAN CHANGE STATUS DURING GRACE PERIOD

During the 60-day grace period, workers can apply to change their non-immigrant status. Options may include:

Becoming a dependent of a spouse (eg, H-4, L-2). Some dependents may be eligible for work authorisation.

Changing to student (F-1) or visitor (B-1/B-2) status. Note that B-1/B-2 visitors cannot work in the US.

Seeking a new employer-sponsored status (eg, TN, E-3, H-1B1). Timely filing of a petition by a prospective employer can pause unlawful presence accrual, but it doesn’t grant work authorisation until approved. Premium processing may be available for some petitions. More options for STEM professionals are detailed on our website.

Workers can decide to leave the US despite the option to extend their authorised stay. If H-1B or O workers leave after losing their job, their employer (or petitioner for O workers) must pay for their transportation back to their home country. For O workers, both the employer and petitioner are responsible.

Once abroad, H-1B holders can look for US jobs and return for the remaining H-1B period. They can also apply for other eligible classifications from abroad and return to the US after approval.