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How to Extend Your H1B Grace Period During Layoffs
by Abby on Apr 29, 2024 11:58:46 AM
At a Glance
- Understanding the H1B Grace Period
- Strategies for Extending Your H1B Grace Period
- Negotiating Severance Terms
- Using Unpaid Leave Strategically
- Exploring FMLA Benefits
- Negotiating the Terms of Your H1B Layoff
- Preparing to Negotiate
- Email Template to Contact your Employer
- What to Do After Your Grace Period Starts Counting
- Conclusion
With numerous tech employers announcing layoffs over the first several months of 2024, many H1B holders are facing uncertainty about their job security and their future in the United States.
If you’re facing a layoff from your H1B employer, you’ll have a 60-day grace period to address your situation. This period allows you to temporarily maintain your visa status while you search for a new visa sponsor, pursue H1B alternatives, or prepare to leave the United States.
While 60 days might seem like a short time, considering the major decisions you’ll need to make, you may be able to extend your H1B grace period by negotiating the terms of your layoff with your employer.
Understanding the H1B Grace Period
The H1B grace period begins the day after you stop working for your employer. For example, if you are given a two-week notice of your layoff on May 1 and your last working day is May 15, your H1B grace period begins on May 16, from May 1 to May 15 that is called notification period and not counted towards the grace period.
Typically, from a practical standpoint, USCIS starts counting H1B grace period from the day after you stop receiving a paycheck and are no longer on the payroll. If your company provides a severance package after layoff, the calculation of the grace period can become somewhat tricky.
If you actively communicate with your employer and gain support from the HR department regarding your visa status, you may be able to "extend" your grace period to some extent. This extension can provide you with more time to find a new job or change to a different visa status, giving you a significant advantage during this period.
Here are three strategies H1B employees can try to "extend" your grace period after being laid off.
Strategies for Extending Your H1B Grace Period
Negotiating Severance Terms
Many tech companies offer a 2-3 month severance package to employees after a layoff. This severance pay can provide crucial visa support for H1B employees, potentially extending their stay beyond the standard 60-day grace period by several weeks or even months, as they are still considered on the payroll in that case.
When you sign a separation contract and accept a severance package, the document will clearly state when your employment ends. To "maximize" your grace period through a severance package, it's important to communicate proactively with your employer. Here are two key points to remember during these discussions to effectively add buffer to your grace period:
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Severance Pay as Normal Paycheck: Ensure that the severance package is not labeled as severance pay on the paystub, but rather as a normal paycheck. USCIS will only consider you to still be on the payroll and not start the countdown for your grace period if your paystub reflects normal pay.
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Method of Severance Pay Distribution: If your company provides the severance pay as a lump sum on your last day, your grace period will still start counting from that last day. To extend your grace period, negotiate with your employer to distribute the severance pay in monthly or bi-weekly installments. This method can effectively prolong the time before your grace period begins.
By discussing these options with your employer, you can strategically extend your grace period, giving yourself more time to find a new job or transition to another visa status.
Using Unpaid Leave Strategically
If your employer doesn’t offer you a severance package, you may be able to negotiate with HR to use unpaid leave to extend your tenure with the employer. If possible, and if your employer provides timely notice of your layoff, you might request unpaid leave prior to your final paycheck, pushing back your termination date without obligating the employer to pay you during this period.
Exploring FMLA Benefits
If your company has over 50 employees, you can inquire about FMLA (Family and Medical Leave Act) benefits, which allow for up to 12 weeks of unpaid leave while remaining on the payroll. While it’s not guaranteed that your employer will agree to these terms, discussing a change in your termination date can improve your chances of effectively extending your grace period and managing your next steps.
Negotiating the Terms of Your H1B Layoff
Preparing to Negotiate
Once you’re notified of an upcoming layoff, you should begin preparing to negotiate the terms of your termination with the goal of maximizing your H1B grace period.
- Assess your employment terms: Review your current employment agreement and any company policies, if applicable, to identify any restrictions or potential benefits during your layoff.
- Develop a negotiation plan: Whether you’re seeking to extend your employment through unpaid leave, to restructure your severance package, or to use available FMLA benefits, determine your primary goals for what’s most realistic for your situation.
- Highlight mutual benefits: Clearly articulate the benefits to your employer, such as the ability to recall you if market conditions change before your official termination date or maintaining employee morale by showing support for laid off employees.
- Document agreements: Make sure that any agreed upon terms are documented in writing. This protects both you and your employer and clarifies the terms of your termination conditions.
Contacting Your Employer
After you’ve decided to negotiate the terms of your layoff with your employer, consider sending an email like the one below to open discussions:
Subject: Request to Support H1B Transition
Dear [Employer’s Name/HR Manager’s Name],
I hope this message finds you well. As you may know, my upcoming layoff presents significant challenges due to my H1B visa status. H1B visa holders only have 60-day grace period to find a new H1B job or to leave the country, which is very challenging given the current economic downturn. As such, I wonder if following support is available (based on your specific case):
- Delaying the start of my termination date/grace period to allow more time to secure new H1B employment or initiate a status change.
(Optional) Rather than receiving a lump sum payment, I kindly request that my severance be distributed in staggered payments. This arrangement would extend my H1B status and aid in my search for new employment or visa sponsorship.
- Providing severance compensation or transition assistance to help mitigate the challenges of the H1B transition.
(Optional) I wanted to inquire about the possibility of receiving a severance package to cover my costs during this transition period. If a severance package is not available, I would like to request the possibility of taking unpaid leave to extend my termination date. This arrangement would provide me with additional time to navigate the complexities of the H1B transition process.
Your support on this matter would be greatly appreciated. I'm happy to discuss potential arrangements that are mutually beneficial. Please let me know if you'd like to schedule a time to explore options.
Thank you.
Sincerely,
What to Do After Your Grace Period Starts Counting
Once your H1B grace period begins, it's crucial to act swiftly to secure your visa status. Here are solutions to safeguard your legal stay:
Solution 1: Find a New Employer Within 60 Days and Initiate the H1B Transfer
The most ideal way to maintain your H1B status is to find a new employer who is willing to sponsor your H1B visa. You must secure a job offer and have your new employer file an H1B transfer petition within the 60-day grace period. This transfer allows you to continue working without leaving the country, provided the petition is filed before the end of the grace period.
Solution 2: Change of Status to Safeguard Your H1B Status
If finding a new employer within the 60-day window isn't feasible, consider changing your visa status to remain in the United States legally. Here are two common options:
Changing Your Status to B2 (Tourist Visa)
Switching to a B2 tourist visa can provide you additional time in the U.S. to explore your options. This status change is typically used to extend your stay while you look for a new job. However, remember that as a B2 visa holder, you cannot work in the U.S.
Changing Your Status to F1 (Student Visa)
Another viable option is to change your status to an F1 student visa. Enrolling in a degree program at a university allows you to stay in the U.S. as a student. This option not only maintains your legal status but also provides opportunities for Day 1 CPT for contractor or part time jobs, or OPT opportunities after graduation. Check out the four types of schools that you can consider changing to F1 status, and also top five Day 1 CPT universities you can choose to change your status.
Acting quickly and considering these options can help you navigate the challenges of the grace period and maintain your legal status in the U.S.
Deciding Between Changing H1B to F1 or B2
If you're laid off while on an H1B visa, deciding between changing to an F1 status or a B2 status requires careful consideration, and here's the comparison of two options.
Conclusion
If you’re facing a layoff, you need to act immediately. Discuss strategies with your employer to extend your H1B grace period. By delaying the official end date of your employment, you’ll have more time to seek new sponsorship or pursue H1B alternatives.
