A non-immigrant worker in the US could working in L-1, E-1, E-2, E-3, H-1B, H-1B1, O-1, or TN status. When such worker is laid off or they resign, they do no necessarily need to leave the United States within 60 days, which is often wrongly assumed; there are options they can explore.
Loss of non-immigrant visa employment either voluntarily or involuntarily results in the loss of the NIV status of the foreign worker. A grace period of up to 60 days following termination is generally available to remain in the country. However, if one of the following actions as applicable, is taken within the 60-day period, the foreign worker (and dependents) can remain in the US in an authorized stay beyond 60 days:
- File an application for a change of nonimmigrant status;
- File an application for adjustment of status;
- File an application for a “compelling circumstances” employment authorization document; or
- Be the beneficiary of a nonfrivolous petition to change employer.
If the individual fails to take any of the above actions, they and their dependents may then need to depart the country within 60 days, or when their authorized validity period ends, whichever is shorter.
The 60-day grace-period is a discretionary regulatory provision and starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.
D&A attorneys have extensive experience with non-immigrant visas and can help you navigate options in what can be a nuanced and often, complex process following employment termination. Please feel free to contact us if you require assistance in this regard.
This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.
Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.
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