Experiencing a layoff is incredibly stressful, especially when your ability to live and work in the U.S. is tied to your employment. At Founder Law, we work with brilliant tech founders and innovators every day who face this exact hurdle. If you’ve just been laid off on an H-1B, take a deep breath. You have options, and we are here to help you navigate them.
The H-1B 60-day grace period is the window U.S. Citizenship and Immigration Services (USCIS) may grant to remain in the country after employment ends. After a layoff, termination, or notice period, whether that window actually protects you can depend on how your employer classifies your final days, whether you are receiving severance or notice-period pay, and whether you hold an approved I-140.
Understanding the nuances of the H-1B 60-day grace period is critical for maintaining lawful presence in the U.S., including H-1B layoff options, H-1B transfer after layoff, the difference between severance vs. notice period H-1B treatment, how the H-1B grace period and garden leave interact, and what an approved I-140 H-1B layoff situation changes about your timeline.
Key Takeaways
- The H-1B 60-day grace period is discretionary. USCIS grants it in most cases but can shorten or deny it, and it lasts up to 60 calendar days or until your I-94 expires.
- The clock generally starts the day after your last day of paid, productive employment, not the day severance runs out.
- Severance does not extend the grace period. Garden leave or a formal notice period may preserve status longer if you remain an active, paid W-2 employee and the petition/LCA has not been withdrawn, but this is not guaranteed.
- You cannot work again during the H-1B grace period unless a new employer has filed a non-frivolous H-1B petition that qualifies you for portability.
- An approved I-140 generally lets you keep your priority date and extend H-1B status beyond the six-year cap, provided the former employer does not withdraw it within 180 days of approval.
What Is The H-1B 60-Day Grace Period And How Does It Work?
The H-1B 60-day grace period comes from a Department of Homeland Security regulation, 8 CFR 214.1(l)(2), that permits a discretionary period of up to 60 days for certain nonimmigrant workers, including H-1B holders after employment ends. It exists to give workers time to find a new sponsor, change to another status, or prepare to depart without immediately falling out of status.
- It is discretionary. USCIS decides whether to grant it when it adjudicates your next petition or application. In practice most workers who were otherwise maintaining valid status receive the full window, but factors such as fraud findings, unauthorized employment, or criminal issues can reduce or eliminate it.
- It is capped by your I-94. You generally get up to 60 calendar days or until your authorized stay expires, whichever is sooner. For instance, if your I-94 has only 20 days left, you have 20 days, not 60.
- It runs on calendar days. Weekends and holidays count, and you generally can use it only once per authorized stay.
When Does the Clock Actually Start?
One of the principal governing ideas is that the grace period begins the day after the last day for which you were paid a wage for actual work performed. Applying that idea to three common situations produces three different results.
Severance Pay: The Clock Starts at Your Last Working Day
While severance provides financial relief, it does not delay your immigration timeline. Here is
how USCIS views severance pay:
- Productive Work Dictates the Clock: Your employment officially ends on your last day of actual work, regardless of whether severance is paid as a lump sum or spread out over weeks.
- Severance is Not Active Employment: USCIS classifies it as compensation for job loss, not payment for services rendered.
- Example Scenario: If your last working day is March 15, your 60-day grace period begins March 16 and ends around May 14, even if you receive eight weeks of severance.
- Avoid Common Pitfalls: Assuming the grace period starts when severance payments stop is a primary reason workers accidentally fall out of lawful status.
Garden Leave or a Formal Notice Period
Alternatively, a company might place you on “garden leave” or a formal notice period. In this scenario, you are relieved of your day-to-day duties but remain an active, W-2 employee on the regular payroll for a specified duration. Because you are still officially employed, and assuming the employer has not yet withdrawn the H-1B petition or Labor Condition Application (LCA), your employment has not legally ceased.
In the context of an H-1B grace period garden leave situation, you can file a new H-1B petition at any point during the notice period. The 60-day grace period will only begin the day after your formal garden leave concludes.
Proceed with caution regarding H-1B garden leave. Because the “actual work” standard requires services performed, adjudicators may scrutinize non-productive periods amid heightened 2026 scrutiny. Your position’s strength depends heavily on documentation showing ongoing LCA wages, active petitions, and employment continuity. Since outcomes vary, tailored legal review is essential. Founder Law’s Ask Sophie Q&A effectively addresses these complex status transfer scenarios.
The H-1B 60-Day Grace Period: Scenario Comparison
| Scenario | Employment considered ended when? | Effect on grace period |
| Immediate termination + severance | Last day of productive work | No extension; clock starts next day |
| Formal notice period / garden leave (still active W-2, petition intact) | Potentially the last day of the notice period | May preserve status through the notice period, then 60 days—fact-dependent |
| Resignation | Last day of employment | Same 60-day window as a layoff |
Your Options Within the Grace Period
The grace period is not the goal in itself; it is time to execute one of a limited set of moves. The main H-1B layoff options are:
- Transfer to a new H-1B employer. A new employer files a non-frivolous I-129 petition. Under H-1B portability, you can typically begin working as soon as USCIS receives the petition; you most likely will not have to wait for approval. The role must still meet the standard requirements for an H-1B specialty occupation, so the new position and your credentials need to align with the petition.
- Change to another nonimmigrant status. You may file to change to a dependent status such as H-4 (if a spouse holds valid status) or to F-1 for study. These change of status paths are legitimate but must be filed before your authorized stay expires; Founder Law’s Family & Individual Immigration practice may be able to assist with these transitions.
- Pursue a bridge or self-directed route. Some workers may consider a B-1/B-2 bridge while job hunting, but this carries elevated risk in 2026: officers are issuing more RFEs and denials where an open-ended job search appears inconsistent with visitor intent. Founders and senior technologists with an approved I-140 sometimes explore self-sponsorship instead, a route discussed in Podcast Ep. 216: H-1B Self-Sponsorship and More.
- Depart in good standing. Leaving before your authorized period ends typically preserves a clean immigration record and avoids unlawful presence, which can trigger three- or ten-year reentry bars.
One important limitation: you cannot work during the grace period unless a new employer has already filed a qualifying H-1B petition that triggers portability. The grace period authorizes your stay, not your employment.
How an Approved I-140 Could Affect Your Timeline
An approved I-140 is a potentially valuable asset for an H-1B worker. It could hold going into a layoff, for two reasons.
- It Could Let You Keep Your Priority Date
Your Priority Date in EB-1, EB-2 or EB-3 carries over to a future employer’s green card process, so a layoff does not send you to the back of the green card line.
- It Could Help You Extend H-1B Status Beyond The 6-Year Maximum
The key difference when facing a layoff with an approved I-140 is that, as long as your green card process remains active, you could potentially extend H-1B status in three-year increments under AC21.
This benefit generally holds only if your former employer does not withdraw the I-140 within 180 days of its approval. If the I-140 has been approved for more than 180 days, a withdrawal typically cannot strip your ability to extend your H-1B status. Even if it has been approved for fewer than 180 days and is withdrawn, you still retain your priority date—but you will lose the ability to extend your H-1B beyond the six-year maximum. Knowing exactly where you sit relative to that 180-day line often shapes the entire strategy. For questions about how this interacts with processing times and green card timelines, the Founder Law FAQs cover the mechanics.
Why Choose Founder Law
- Niche Tech Expertise: We specialize in complex, high-stakes immigration solutions specifically for founders, technologists, and modern companies.
- Fact-Specific Analysis: We dissect your exact timeline, severance documents, and I-140 status against real-time 2026 USCIS adjudication trends.
- Tailored Strategy: Skip generic rules of thumb—get precise, legally backed action plans designed to protect your status and transition smoothly.
Why Precise Classification Is Worth Professional Review
The label your employer uses—”severance,” “garden leave,” “notice period”—matters less than the underlying facts USCIS will examine: when you last performed paid work, whether the petition and LCA remained in place, and how the arrangement was documented. Small differences in these facts produce different grace-period start dates and different available options.
Because H-1B 60-das grace period timelines often depend on employment agreements, payroll records, and USCIS documentation, Founder Law reviews each client’s specific facts before recommending a filing strategy. This case-specific approach helps founders, engineers, and technology professionals minimize immigration risks during employment transitions. To evaluate your situation, contact Founder Law to speak with an immigration attorney about your options. Transitions can feel daunting, but you don’t have to navigate them alone. We’ve helped countless founders and tech professionals turn a layoff into a stepping stone for their next big venture. You’ve got this—and we’re here to help!
This post is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Immigration outcomes depend on individual facts; consult a licensed immigration attorney about your situation.
Frequently Asked Questions
When does the H-1B 60-day grace period start?
The grace period generally begins the day after your last day of paid, productive employment. For a straightforward termination, that is your final working day. Notice periods and garden leave can shift this if you remain an active, paid employee, but the start date depends on your specific facts and how your employment was documented and classified.
Does severance pay extend the H-1B grace period?
No. USCIS treats severance as compensation for job loss, not payment for work performed, so it does not delay when the grace period begins. If your last working day is March 15, your 60-day window starts March 16 regardless of how many weeks of severance you receive. Plan your timeline around your last working day.
Can I work during the H-1B grace period?
Generally no. The grace period authorizes your continued presence in the U.S., not employment. The exception is H-1B portability: once a new employer files a non-frivolous H-1B petition, you may begin working for that employer upon USCIS receipt of the petition, without waiting for approval.
How long is the H-1B grace period after a layoff?
Up to 60 calendar days, or until your I-94 authorized stay expires, whichever comes first. It runs on calendar days, so weekends and holidays count. It is discretionary rather than automatic, though USCIS grants the full period in most cases absent issues like fraud, unauthorized work, or criminal findings.
What happens if I don’t find a job within 60 days?
If you take no qualifying action within the grace period, you and any dependents are generally expected to depart the U.S. Remaining beyond your authorized stay can lead to unlawful presence, which may trigger a three-year reentry bar after 180 days or a ten-year bar after one year. Departing in good standing preserves future options.
Can I transfer my H-1B to a new employer after being laid off?
Yes. A new employer can file an H-1B transfer (a new I-129 petition) during your grace period. Under portability, you can typically start work once USCIS receives a non-frivolous petition. The new role must qualify as a specialty occupation and match your credentials. Filing earlier in the window is safer than filing near day 60.
Does an approved I-140 help if I’m laid off on an H-1B?
Yes. An approved I-140 lets you keep your priority date and extend H-1B status beyond the six-year limit under AC21. You retain your priority date once your I-140 is approved, regardless of when it is withdrawn (unless revoked for fraud or misrepresentation). However, the ability to extend your H-1B status beyond the six-year limit under AC21 only holds if your former employer does not withdraw the I-140 within 180 days of its approval. After 180 days, a withdrawal cannot remove this H-1B extension benefit.
Can I change to another visa status during the grace period?
Yes. You may file to change to another nonimmigrant status—such as H-4 through a spouse, or F-1 for study—provided you file before your authorized stay expires. B-1/B-2 bridge filings are possible but face heightened scrutiny in 2026, as officers examine whether an open-ended job search is consistent with genuine visitor intent.