If you are a foreign national working in the U.S. with an H-1B visa, you have probably heard the rumor that there is a ten-day “grace period” for people with H-1B visas, and that this grace period gives H-1B visa holders ten days in which to find another job if they leave their H-1B employer - voluntarily or involuntarily.
However, this is NOT correct. There is NO ten-day grace period for H-1B visa holders. As soon as you cease working with your H-1B employer, you immediately fall out of status and you are no longer maintaining legal status in the United States.
This article discusses the importance of leaving the U.S. when your H-1B status expires, the consequences of failing to leave in time, and how you may be able to change status from H-1B to another visa in order to legally remain in the United States.
It is VERY important to leave the U.S. when your H-1B status expires. Your status can expire in either (or both) of two ways. First, your status can expire upon the arrival of the date noted on your I-94 Arrival/Departure Record that you received when you entered the U.S. in H-1B status. (Note that if you changed status to H-1B status while already in the U.S., your new I-94 is located at the bottom of your H-1B approval notice.
For example, let’s say you entered the U.S. with your H-1B visa on August 1, 2012. Your I-94 stated your name, your nonimmigrant classification (H-1B), and the date your status is valid until – July 31, 2015. In this case, you MUST depart the U.S. on or before July 31, 2015, the date that your H-1B status expires.
Or, your status is deemed to expire when you cease to maintain you status. In the case of an H-1B visa holder, your status will expire the day you stop working for your H-1B employer – regardless of what date is stamped on your I-94.
For instance, in the above example, let’s say you quit your H-1B job on February 1, 2015. By quitting, you are no longer maintaining your status. Therefore, you would fall out of status on February 1, 2015, even though your I-94 is valid through July 31, 2015.
If you fail to leave the U.S. after your status expires, you are considered to have "overstayed" your period of authorized stay. That means you do not have any legal status in the U.S. and you begin to accrue “unlawful presence.”
Accruing unlawful presence leads to VERY serious consequences. If you accrue more than 180 days but less than one year of unlawful presence, when you next leave the U.S. you will not be allowed to reenter the country for a period of three years. Even more seriously, if you accrue a year or more of unlawful presence, when you next leave the U.S.you will be barred from reentering the country for a period of ten years.
As an alternative to departing, you may be able to change your status during the validity of your H-1B visa. There are many different types of visas as well as green cards in the U.S., so you will need to look into whether you might qualify for one, perhaps through a job offer or a family relationship. For a information on these options, see Types of U.S. Work Visas.
Regardless of which visa you choose, you (or your employer, depending on the visa) must file the visa petition with United States Citizenship and Immigration Services (USCIS) BEFORE your H-1B status expires. USCIS must actually receive the petition before your status expires; it is not enough that the petition is postmarked by that date.
Additionally, it MAY be possible for you to extend your H-1B status, even after it has expired. Most of the time, in order to extend your status, an H-1B employer must be able to show USCIS that you are currently in status.
However, USCIS does have the discretion to approve an extension of status even if you are not in status. USCIS will typically grant the extension only if you have been out of status for lonely a VERY short period of time (such as a couple of days). Again, even if you have been out of status for only one day, USCIS can still deny the extension of status petition. Therefore, you should not rely on USCIS’s discretion except as a very last resort.
Please note that out of status issues are very complex and have serious consequences that could impact your immigration processing for many years. It is highly recommended you speak to an immigration attorney before attempting to change or extend your status on your own.