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H-1B & Layoffs: Severance and Revocation

Does the 10-day grace period apply to H-1B workers who are laid off?

Unfortunately, No. The 10-day grace period, if granted at POE, only applies to expiring H-1B visas, not when an employee stops working due to layoff or resignation. Generally speaking, a person on E, H, L, O, P, Q, or R visa may enter the U.S. 10 days before the official start of his/her work and may stay 10 days after their authorized period expires. However, the 10-day grace period is not automatic and must be granted by a CBP officer at a Port-of-Entry (POE), and they don't always do that. If CBP doesn't add 10 days to your authorized stay, you begin to accumulate unlawful stays immediately after your last day at work or the expiration of your H-1B status.

Keep in mind that your authorized H-1B period doesn't change whether or not CBP issues the 10-day grace period. Essentially it means that you cannot work during the 10 days before or after your H-1B's validation.

I was already laid off, didn't change my status yet, but found a new job within a month, may I transfer my H-1B?

If the time between your new H-1B petition and your old employment is short, say less than one month, the USCIS adjudicator may overlook the gap and approve your employer's new petition as an extension of stay (H1B transfer). You will receive an approval notice with new I-94 attached. This is the best case scenario.

However, USCIS may approve the H-1B petition, but require you to leave the country and obtain a new H-1B visa at a US embassy or consulate. If successful, you may then return to the US and obtain a new I-94 at the port of entry.

My severance package includes a two-month pay, when am I out of H1B status?

Scenario 1: If your severance package is so structured that you remain a regular employee, may choose to stay home, but has the right to go to your work site during the two months, your last day of being in H-1B status should be the end of this two-month period. This is officially your last day at work.

Scenario 2: If your severance pay includes two more months of paychecks at regular pay schedule, following termination of your employment, your H1B status supposedly ends on the day before the two-month period. But this falls in a "grey area" and will need further clarification from government officials. The reason is that in practice, USCIS requires mostly pay checks to determine your employment status. So it is quite possible that an adjudication officer will come to the conclusion that your H-1B status stops on the last day of you being on the payroll, as reflected by your pay stubs. This needs to be clearly addressed in your subsequent petition, without misrepresenting your situation.

Scenario 3: If your two-month severance comes in the format of a lump sum payment following termination of your employment, your H-1B status ends on your last day at work.

Can an H-1B worker remain as an employee without pay?

No. Doing so does not preserve your H-1B status. Neither USCIS nor DOL will consider it a bona-fide employment relationship if you do not actively work for the company, and do not get paid. In fact, such arrangement may put the employer in a risky position, potentially owing back wages to the H-1B worker.

Does it matter whether or when my employer revokes my H-1B visa status?

As long as an employer takes proper steps to terminate employment relationship with an H-1B worker, it is considered official regardless of whether a revocation request is pending with USCIS. These steps may include written notification to the H1B employee clearly indicating termination of employment, fulfillment of all contractual obligations, offer of return airfare to the employee's home country, and filing of H-1B revocation with USCIS. It may take USCIS several months to process an H-1B revocation request, so it is highly unlikely that USCIS would consider an H-1B worker still in status before it makes a decision.

It is to the best interest of an employer to promptly file revocation requests with USCIS, to avoid future disputes including back wage issues.

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