USCIS Explains Solution To 60-Day Grace Period For Laid-Off Immigrant Workers

USCIS’ detailed and thorough FAQ explains how laid-off immigrants can protect their status.

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As I write this in March 2023, the tech layoffs have continued in earnest. While the exact number of immigrant workers that have been laid off remains unknown, the number is significant. In my opinion, it can be called a crisis. Thousands of people face serious challenges and the possibility of being forced to leave the United States.

The United States Citizenship and Immigration Services (USCIS) released an informational document (updated in March) that clarifies a few of its policies that bring some relief in the situation. While these aren’t changes in law, the policy clarifications could make it easier for a laid-off worker to find a new job and keep their immigration status in the United States.

When an immigrant worker on an H-1B, L-1, O-1 or any other work visa loses their job, the clock starts ticking on a 60-day grace period. During that time, they have permission to remain in the U.S., and they are not removable. But the person must take action within those 60 days if they want to stay in the U.S. after the grace period. Those actions will bring challenges along the way, as I wrote in my December 2022 column.

Over the past several months, many people, including me, have advocated for USCIS to increase the 60-day grace period during this time of economic turmoil. Congresswoman Zoe Lofgren of California’s 18th District and Congresswoman Anna Eshoo of California’s 16th District — who both represent parts of Silicon Valley — also wrote to the secretary of the Department of Homeland Security asking to increase the grace period.

However, the reality is that regulatory changes can take months to accomplish.  The time it would take to change the law on the grace period would take too long to help the immigrant workers who are already in the middle of this situation.

Fortunately, USCIS’ detailed and thorough FAQ explains how laid-off immigrants can protect their status. USCIS also makes several very welcome policy explanations that will help with some specific challenges.

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The guidance brings relief on several issues. Here are just two issues that have been causing much anxiety to people.

First, there was increasing confusion and anxiety about when the 60-day grace period begins. Many companies are giving 60 days’ notice and paying employees as “active” employees while the notice period expires. Confusion arose about whether the 60-day countdown begins when they are notified and stop working, or if it is the last day the payroll was issued.

USCIS has confirmed on the FAQ that the last pay stub will determine the first day of the grace period. “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,” the policy document states.

The second policy clarification I would like to highlight is a common scenario, where a person gets a new job while a change of immigration status application is still pending. The potential conflict is this: When someone files multiple immigration applications, generally the first application needs to be approved for the subsequent one to be approved. However, some forms can be expedited through  premium processing, but others cannot. In this situation, changing the status to a tourist visa (B-1/B-2) with Form I-539 is a necessity to avoid deportation. However, Form I-539 can take over a year to adjudicate and is not eligible for premium processing. Yet, the Form I-129, which employers use for filing work visa applications, is eligible for premium processing. To ensure one could work quickly upon filing the I-129, an applicant may pay the premium processing fee, but the authorization to work would not be given before the approval of the prior I-539 application.

USCIS clarified its policies on this important issue, stating that there should be no delay in work authorization even if there are the two applications filed on behalf of the worker, as the USCIS FAQ states:

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If an employer files a Form I-129 petition on your behalf, along with a request for premium processing service, USCIS will generally process the pending I-539 and the I-129 together during the premium processing timeframe and issue concurrent decisions. This means there should be no delay in adjudication of the I-129 because of the pending I-539. No formal request is required from the for the pending I-539 to be prioritized. If USCIS approves the I-129 petition, including any requested change of status, then you generally will obtain the nonimmigrant status requested on the I-129 petition (not the I-539), and may begin working. You generally would not need to depart the United States to obtain the requested nonimmigrant status in this scenario.

This means that both of those forms will be adjudicated together without any further action from the applicant, lawyer, or employer. Without this solution, the applicant would have had to leave the United States, potentially facing a myriad of challenges before re-entering.

While a longer grace period would still be useful, with the new comprehensive guidelines that cover many other equally important concerns, I do feel relieved for my clients and community. I commend USCIS for streamlining and clarifying these policies.

It’s important to acknowledge the hard work of all the advocates, particularly the American Immigration Lawyers Association (AILA), reporters, and media that stepped up their advocacy and shared stories. While the bigger economic problems and layoffs may continue in 2023, I thank USCIS for taking swift action for laid-off immigrant workers.


Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree.  Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at tahmina@watsonimmigrationlaw.com, connect with her on LinkedIn or follow her on Twitter at @tahminawatson.