If Your Employment Ends on a Work Visa, What Are the Options Within 60 Days?

Reviewed by: Beth Persky, Esq.

Introduction

If your job ends while you hold E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status, federal regulation (8 CFR 214.1(l)(2)) provides that you and your dependents are not considered to have failed to maintain status solely because the employment ended, for up to 60 consecutive days or until your current authorized stay expires, whichever comes first. Within that window you can generally take one of five paths: have a new employer file a petition for you, file to change to a different nonimmigrant status, file for Adjustment of Status if you are eligible, apply for a compelling circumstances work permit, or depart the United States.

One caveat: the Department of Homeland Security may shorten or eliminate the 60-day period in its discretion. Treat 60 days as a maximum, not an entitlement, and act as early as you can.

When does the 60-day clock start?

According to USCIS, the grace period starts the day after termination of employment. USCIS generally determines the termination date based on the last day for which the employer paid salary or wages for work performed, which is not the same as the date your final paycheck is issued. Severance payments, garden leave, and unused vacation payouts can complicate how that date is determined, so confirm your final day of paid employment with your employer in writing and review the question with an attorney if your separation involves post-termination payments.

Two other rules affect the calculation:

• The period ends early if your I-94 or petition validity expires before day 60. You get the shorter of the two.
• You can receive the maximum 60-day period once per authorized validity period. A new approved petition with a new validity period can make a fresh grace period available if employment ends again later.

Option 1: A new employer files a petition for you

If a new employer files a timely, nonfrivolous petition (Form I-129, Petition for a Nonimmigrant Worker) with an extension of stay request before the grace period ends, you may generally remain in a period of authorized stay while it is pending. Remaining in the United States while the petition is pending does not by itself authorize you to work; employment authorization depends on the rules of your category.

For H-1B workers there is an added benefit called portability (INA 214(n)): once the new employer properly files the H-1B petition, you may begin working for that employer while the petition is pending, without waiting for approval. If USCIS later denies the petition, that work authorization ends when USCIS notifies the employer of the denial.

Portability applies to H-1B workers. Workers in E, L-1, O-1, or TN status generally cannot start the new job until the new petition is approved, unless another basis authorizes the work. TN nationals of Canada may also have the option of applying for a new admission at the border rather than through a USCIS filing, though whether that route makes sense depends on the case and current port-of-entry practice.

Option 2: Change to a different nonimmigrant status

You can file to change status before the grace period ends. Depending on the category, this is done on Form I-539 (Application to Extend/Change Nonimmigrant Status) or by a petitioner on Form I-129. Examples include:

• B-2 visitor status, which may allow additional time to organize your affairs or continue a job search from inside the United States. B-2 status does not authorize employment, and you would need to obtain an employment-authorized classification before starting any new job.
• F-1 student status. Admission to a program alone does not establish eligibility for the change, and you generally may not begin the F-1 course of study until USCIS approves the change of status, unless your current classification separately permits study.
• Dependent status (for example H-4 or L-2) if your spouse holds work-visa status; certain dependent spouses may separately apply for or hold work authorization.

A timely filed, nonfrivolous change of status application places you in a period of authorized stay while it is pending, even after your prior status expires. The downside: a pending application is not a status. If the application is denied after your prior status has ended, unlawful presence generally begins to accrue from the denial (a timely, nonfrivolous filing generally tolls unlawful presence while it is pending), but you would be without status and switching back to a work category later can require extra steps.

Option 3: Adjustment of Status, if you are eligible

If you are eligible to file Form I-485 (Application to Register Permanent Residence or Adjust Status), for example because an immigrant visa number is available to you based on an approved or concurrently filed petition, filing within the grace period places you in a period of authorized stay while the application is pending. You may also apply for a work permit (Form I-765) and travel document (Form I-131) based on the pending I-485. Eligibility depends on your category, priority date, and the Visa Bulletin, so this path is fact-specific.

If your green card process was employer-sponsored and still at the PERM or I-140 stage, losing the job can affect the case. Separately, an approved EB-1, EB-2, or EB-3 Form I-140 generally retains its priority date for future filings even if the employer withdraws it, unless the approval is revoked for fraud or willful material misrepresentation, revocation or invalidation of the underlying labor certification, or material error.

Option 4: Compelling circumstances work permit

Workers in E-3, H-1B, H-1B1, L-1, or O-1 status (including the grace period) may apply for an Employment Authorization Document based on compelling circumstances (8 CFR 204.5(p)) if they are the principal beneficiary of an approved Form I-140 in the EB-1, EB-2, or EB-3 category (INA 203(b)(1), (2), or (3)), an immigrant visa is not authorized for issuance for their priority date, and they can show compelling circumstances. USCIS guidance gives examples such as serious illness or disability, employer dispute or retaliation, significant harm to the applicant, or significant disruption to the employer. An applicant convicted of a felony or two or more misdemeanors is ineligible.

There is a significant consequence to weigh: if you rely on the compelling circumstances EAD and work in employment inconsistent with your prior nonimmigrant classification, you are no longer maintaining that nonimmigrant status. You remain in a period of authorized stay and do not accrue unlawful presence while the EAD is valid, but whether you could later file for Adjustment of Status from inside the United States, or would instead complete the immigrant visa process at a consulate abroad, depends on your specific facts and should be assessed with an attorney before you choose this path.

Option 5: Depart the United States

If none of the above is filed within the grace period, you and your dependents generally need to depart before the grace period ends. Leaving on time avoids unlawful presence. Under INA 212(a)(9)(B), a person who accrues more than 180 days but less than one year of unlawful presence and then departs generally faces a 3-year reentry bar, and a person who accrues one year or more of unlawful presence and then departs or is removed generally faces a 10-year bar. Departing on time does not forfeit an approved EB-1, EB-2, or EB-3 I-140 priority date (subject to the revocation exceptions above), and you can pursue a new petition and visa from abroad.

What about dependents?

Dependent spouses and children (for example H-4, L-2, O-3, TD, E dependents) hold status tied to the principal worker. Actions the principal takes within the grace period generally determine the family’s options, and dependents may need their own Form I-539 filings. A dependent spouse’s ability to keep working during the grace period depends on the category: the spouse must remain employment authorized under the applicable rule (for example, E and L-2 spouses who are employment authorized incident to status, or an H-4 spouse who holds a valid or automatically extended EAD). If the underlying authorization or EAD lapses, the spouse cannot continue working.

Comparing the options

FAQ

• Does the 60-day grace period apply if I quit voluntarily?

  Yes. USCIS states the grace period may apply to both voluntary and involuntary cessation of employment.

• Can I work during the grace period?

  No, unless you have separate work authorization. The grace period preserves status; it does not authorize employment.

• Can I travel internationally during the grace period?

  Departure ends the grace period. To return, you would need a visa and status that permit reentry, such as an approved new petition.

• What if my employer rehires me within the grace period?

  If the original petition remains valid, you return to work for the same petitioner in the same authorized employment, and there has been no material change requiring an amended petition, USCIS states you may resume work without further action. A changed position may require an amended or new petition. If the employer already withdrew the petition, a new petition is needed.

• Do my dependents get their own grace period?

  Dependents’ status follows the principal’s. They are generally covered by the same window and may need their own Form I-539 filings to change or extend status.

• What happens if I file nothing within 60 days?

  You and your dependents generally must depart by the end of the grace period or the end of your authorized validity period, whichever is shorter. Staying past that point risks accruing unlawful presence, which can lead to reentry bars after departure.

• Is the grace period guaranteed?

  No. DHS may shorten or eliminate it in its discretion. USCIS recommends requesting favorable exercise of discretion in a cover letter with your next filing.