Calculating the 60 Day H-1B Grace Period
When does the 60-day grace period begin for laid-off H-1B workers?
Understanding the 60-day rule and the possible interpretations of when this time period begins is critically important and an issue that seems to not get the proper attention and discussion. This calculation is very important for an H-1B worker and their new sponsoring employer, to ensure timely filing of a transfer application or change of status application, without USCIS finding a violation of authorized stay and denying such filing.
The immigration regulations (8 CFR 214.1(l)(2)), dealing with the 60-day grace period, references “cessation of employment” as the start date or triggering event for counting this window. So let’s take a look at how this could be interpreted.
Although there seems to be a lot of information floating around that this calculation starts from the last date any payment is received, even if this is some sort of severance payment well after actual work has stopped, this is certainly not a conservative reading of the rule. Official termination dates are often the last date that an employee is officially working with an employer, and this is sometimes even spelled out this way in a severance agreement, irrespective of when the final payment or payments are made thereafter.
As a result of this, it is extremely important for everyone to understand that starting the 60-day count at any other point in time, other than the earliest date that an individual stopped having access to work at a sponsoring employer, could be risky. The USCIS does have discretion in these matters but if you are seeking to understand all possible scenarios and risks associated with certain H-1B transfer filings, it is critical to understand this possible interpretation of the otherwise seemingly simple 60-day rule.
I do not mean to say that it would be impossible for USCIS to exercise discretion or not pay close attention to this issue and just accept paystubs for a filing beyond this conservative 60-day count, but it is a risk that shoudl be flagged as USCIS policies and requests for evidence often change. Also, some companies, in hopes of alleviating some pain for laid off employees may offer some sort of severance or assistance via continued payments into the future, beyond actual cessation or termination of employment. Although this is gracious and helpful in some ways to a laid off worker, it might not necessarily be a foolproof way to help with the 60-day grace period calculation.
Lastly, if your I-94 expires earlier than this 60-day window the I-94 date controls. This is another important issue to understand and discuss with an immigration attorney. Feel free to contact us and set up a time to chat below.
Disclaimer: This post is not legal advice. Always consult with an immigration attorney about your specific facts as there are many nuances to immigration law as expressed in this post. Speak to a lawyer, it is worth it. A post should never be taken as legal advice.