I am on H1B, working for a large tech company. My I-94 is valid through next year. I recently was notified that I am being laid off. Technically, I will remain employed by the company for the next couple of months, receiving my regular salary and benefits. However, I will not be performing any work. When does my 60-day grace period start?

Answer

The regulation states that the 60-day grace period starts upon the “cessation of employment.” So, in a case like this, it has been open to interpretation whether the grace period starts following the last day the person performs work, or if it starts following the last day of technically being employed. But, based on a number of factors, it seemed that the USCIS intended the grace period to start after the person stops working, regardless of whether the employer continues to pay the individual.

Very recently, however, the USCIS posted answers to a number of FAQs regarding options for nonimmigrant workers following termination of employment. In response to a question about when the 60-day grace period begins, the USCIS indicated that it starts “the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.” Based on this language, it certainly provides ammunition to the argument that the grace period does not begin until after the company ceases to pay the H1B worker’s salary. (16.Mar.2023)

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