What happens if I get laid off while holding a work visa (H-1B, L-1, etc.)?

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Frequently Asked Questions

Q1. There are two different dates that I got from the company saying that I have been laid off and my last working day is November 4th and my separation date is Jan 4th. So I wanted to know when the grace period of 60 days for H-1B visa starts?

A1. If somebody is on H-1B and they suffer a termination of the employment they will not always have 60 days. They can have less than 60 days. If their I-94 status is expiring before 60 days; for example, if your H-1B approval is still October 1st you will not have a 60 day grace period. You will only have up until October 1st. The law is, you have 60 days or the time remaining on your H-1B whichever is lesser. 

As a practical matter what I can advise is whenever you file an H-1B, if you are considering the aggressive option which is your H-1B 60 day grace period begins after your separation date, just make sure you file your premium processing which is very  important. If a premium processing case is filed the fees can be paid by the employee (if the employee requests) for their own benefit and not by the employer for their benefit. You could even offer to pay the premium processing fee for the following H-1B. 

Q2. During the 60 day grace period can I travel and can I return using the old employer's visa?

A2. You should not travel unless you have already filed and USCIS has received your H-1B petition for the next employer. If the next employer's H-1B is approved, you can then travel using the same visa which you had for your old company. My advice would be not to travel during the 60 day grace period. Once you get the approval and you get a change of status you can then travel using the new employer's approval and the old employer's visa.

Q3. My spouse and I are planning to travel in the month of January 2023. Do you think it is better to apply for H-4 in the U.S or is it fine to go to India  and apply for H-4? If we apply for an H4 in the US and we leave the country will I need to apply for a new petition?

A3. If you leave within 60 days I do not see the need to apply for an H-4. But, if you leave past the 60 day period, then you have to decide whether you feel more comfortable filing a derivative or tourist visa petition. This way you will never be out of status in the U.S.

You do not need that petition filed at the USCIS. You can directly apply for your H-4 at the consulate.

Q4. How long does the H-4 process take?

A4. It takes several months.

Q5. Can I get unemployment insurance 

A5. I think during the 60 day period you should be able to get it, but it depends on the State law. Check with your State law, whether you can get the unemployment benefits during the 60 day period and after the 60 day period. When you apply for unemployment insurance you have to have a valid legal status.


Immigration Law

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