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March 15 2023

Clarification on H-1B Layoffs

The USCIS has finally provided some clarification about its policy on maintaining H-1B status for those who are laid-off/terminated. The rules provide that one has a grace period of up to 60 days in H-1B status after a layoff or other “cessation of employment.” While one is in the grace period, a new employer may file a new H-1B petition for them and they may start the new job as soon as the petition is received by the USCIS. Some employers continue to pay employees for a while after they are notified of the lay-off and stop performing work.  USCIS has clarified when exactly the 60-day grace period begins.

Here is the new USCIS policy:

   Q: When does the 60-day grace period start?
   A: The maximum 60-day grace period starts the day after termination of employment, which is
   typically determined based on the last day for which a salary or wage is paid.

New USCIS Processing of Dependents’ H-4 Extensions

When an H-1B extension is filed, the spouse and children can file an extension of their dependent H-4 status. In the past (Trump Administration), the H-1B and H-4 extensions were not decided together and it could take a year for the H-4 application to be decided. Now they are decided together as long as they are filed together.