What Is the 60-Day Grace Period After Losing Your H-1B Job?

The 60-day grace period after an H-1B job ends is counted in consecutive calendar days from the day after your last day of employment, and it is the only thing standing between you and being out of status. Inside the window you can have a new employer file for you, change to another status on Form I-539, or leave. Outside it, every option gets harder and some disappear. This post explains how the H-1B 60-day grace period is counted, what you may and may not do during it, the four realistic paths, and the cost of waiting until day 61.

How the 60-day grace period is counted

The regulation at 8 CFR 214.1(l)(2) gives nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, and their dependents, a discretionary grace period of up to 60 consecutive days after employment ends, or until the I-94 expires, whichever comes first. A worker whose I-94 ends 20 days after the layoff gets 20 days, not 60. The period is available once per authorized validity period, so a second layoff during the same petition’s validity does not restart it. Employment ends on your last working day, not on the day severance stops or the day the employer withdraws the petition. If the employer places you on paid garden leave and you remain on payroll, the question of when employment ended is fact-specific, and our change and extension of status team looks at the separation documents before counting.

USCIS grants the grace period as a matter of discretion. A worker who violated status before the layoff, for example by working for a second employer without a petition, may not get it.

What you cannot do during the 60 days

You may not work, for anyone, including the former employer on a contract basis. You may not be paid for work performed in that window. You may stay, interview, sign an offer, and file applications. The period protects your status while a filing is prepared; it is not work authorization.

Path one: a new employer files an H-1B petition

Because you were already counted against the cap, a new employer can file a change-of-employer petition on Form I-129 at any time of year after obtaining a certified Labor Condition Application from the Department of Labor. Under H-1B portability you may begin working for the new employer as soon as USCIS receives the petition, provided it is non-frivolous and you were maintaining status when it was filed. Filing inside the 60 days satisfies that condition. Our H-1B visa page explains the petition, and our post on what happens if an H-1B is denied covers the downside if the new petition fails after you have started.

Path two: change status with Form I-539

If no offer is coming in time, Form I-539 filed within the window keeps you in a period of authorized stay while USCIS decides. The common choices are B-2 for a job search or to wind up your affairs, which USCIS has accepted as a legitimate purpose, F-1 if you have an admission and an I-20, and H-4 or L-2 if your spouse holds H-1B or L-1 status. H-4 spouses whose partner has an approved I-140 can also apply for work authorization. One caution: if a new H-1B employer files while your I-539 is pending, the I-539 becomes a bridge, and USCIS will not approve the H-1B change of status until the bridge is approved. Our Form I-539 evidence checklist lists what the application needs.

Path three: green card tools if an I-140 is approved

Workers with an approved Form I-140 have two extra options. If your priority date is current on the Visa Bulletin, you can file Form I-485 and request employment authorization, and the pending adjustment carries you past the grace period. If the date is not current, you may apply for a compelling circumstances employment authorization document on Form I-765 by showing an approved I-140, a priority date that is not current, and compelling circumstances such as a serious illness, employer retaliation, or significant disruption to the employer. An I-140 that was approved for at least 180 days also keeps your priority date even if the former employer withdraws it, which matters for a future petition. Our post on changing from H-1B to a green card explains how the pieces fit.

Path four: leave within the window

Departing before day 60 avoids unlawful presence and keeps the record clean for a future petition filed from abroad. The former employer is responsible for the reasonable cost of return transportation if it ended the job early. A new employer can still petition for you abroad, and you would enter on a new H-1B visa after consular processing.

Day 61 and the cost of waiting

A filing on day 61 is late. USCIS can excuse a late filing only for extraordinary circumstances beyond your control, and a slow job search does not qualify. From that day you are out of status, and once your I-94 passes, unlawful presence begins to accrue toward the 180-day three-year bar. A new H-1B petition can still be approved, but only for consular notification, which means a trip abroad for a visa. Start the clock on the layoff date, pick a path in the first two weeks, and file with margin.

If your H-1B employment has ended or you have been told it will, a consultation with Capitol Law Partners can count your days and choose the filing that fits before the window closes. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our change of status after the H-1B grace period page or schedule a consultation.