Application of 60-Day Grace Period for Laid Off H-1B Worker

May 4th, 2017

In January 2017, the Department of Homeland Security’s (DHS) published final rule became effective providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. One of the benefits of this rule was to grant up to a 60-day grace period to laid off H-1B, E, L and O nonimmigrant workers so that they could try to find H-1B or other employment or other ways to remain in the country in lawful status.

Recently, I was contacted by a foreign national who was laid off by her H-1B employer and she filed an I-539 to change her status from H-1B to H-4 during the 60-day period. She now has a new offer of H-1B employment. The new employer would not be able to file the H-1B petition until after the 60-day grace period and she wants to know if she is eligible for a change of employer H-1B petition so that she will not have to depart the US to restart in H-1B status. Under the new rule, she cannot obtain a change of employer petition in the US, but she does have other options, which are as follows:

1) File the H-1B petition for consular processing, meaning that she will have to depart and reenter the US. She would not need a new H-1B visa if she has current H-1B visa that will be valid when she wants to reenter.
2) Wait until the I-539 application to change her status to H-4 is approved. Then, the employer could file the H-1B petition for her to change her status from H-4 to H-1B in the US and she would have to wait for the new H-1B petition to be approved before she could start working in H-1B status.

If USCIS starts approving H-1B petitions quickly, even without premium processing, which has been temporarily suspended, then she may be able to work sooner than later. Just yesterday I received an H-1B extension petition approval that USCIS processed in 29 days.