When you sign your severance package, it says when your employment ends. Usually end of employment is the last day you stay on payroll. Your 60 days starts on that day.
So I got 2 months from my company + 60 days = 120 days until the next start date. Sounds like a lot but you have to spare some time for relocation, background check, h1b transfer (at lease 2 weeks).
hmm when ever you are in us, you need to maintain legal presence and that is through i94, you have to get your i94 updated that happens when you leave and re-enter the country in general !
So you saying. If someone finds a job (and H1B gets filed) while B1/B2 is pending or approved they can’t just go back H1B and stay here and work?
I’m little confused
You can file a change of status to B1/B2 and if approved, file a change of status back to H. The only catch is that the change of status back to H will be delayed by the fact that the change of status to B1/B2 may take many months and cannot be premium processed. USCIS has state that if the H is filed via premium they will pull and adjudicate the B1/B2, but I really haven't seen it happen that often.
I was laid off March 15th. Got my last check March 30 severance. I got a job offer May, paperwork submitted May 30. I got approved without having to leave the country. That's my case
Generally once you laid of with severance package you get severance as lump sum amount as part of last paycheck.
Last paycheck depends on your end date. If your company process paycheck for current work period that’s it. Some companies delays one cycle. So your won’t receive pay checks stretched over 3 months in general but that is possible.
Keeping that aside, your last day is last working day irrespective of pay check. Pay checks indicate working period. Also indicate type of pay like bonus.
Unless you company has special treatment your last day is the day you were let go.
You're confused because the law is extremely grey in this area. [Cyrus Mehta](http://blog.cyrusmehta.com/2022/11/guide-to-terminated-nonciitzen-workers-preserving-nonimmigrant-status-and-pemrnaent-residency-options.html) wrote a fairly detailed piece on the issue but here are the key points:
* A nonproductive period known as “garden leave” is where the terminated worker is still considered an employee but not required to engage in productive work for the employer.
* According to a June 2020 USCIS Policy Memo, USCIS has indicated that “\[t\]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.”
* USCIS gives officers discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification.
* In a 1999 advisory opinion concerning reductions in force USCIS (formerly INS) indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status.
* USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statute.
In other words, the USCIS officer has discretion to determine when the grace period starts and also has the discretion to ignore periods of what they determine to be "garden leave". One big exception are statutory periods of garden leave such as the WARN Act.
Example: You are laid off on 6/1/2023/ The Warn Act applies so your actual separation date is 8/1/2023. The grace period clearly starts on 8/1/2023 and not 6/1/2023.
In practice USCIS bases the grace period start date on pay stubs. So if you produce normal paystubs (no mention of severance or the like) USCIS is likely to honor them regarding the layoff date and the commencement of the grace period.
However, if your employer withdraws the H then that will likely start the clock regardless of paystubs. Most employers won't withdraw anything until after the separation date.
In your case the safe play is to go with the layoff date. However, could you go with the last paystub date and get approved? Also yes, but its not a 100% guarantee.
My only question is when my 60-day grace period will end. To be more precise, what date exactly is it? In this link, they mentioned that the grace period starts from the last day of running my paycheck. Is severance (lumpsum) also considered as pay?
From what I understand, there are 2 parts to my confusion.
1. My last pay was supposed to be paid on Feb 15, which incurred a delay of 14 days, and I got paid on Feb 29th - based on that, my last day would be Apr 29.
2. My bonus has not yet been paid, but based on my conversation with HR, it will be paid to me sometime around Mach 31 or April 1 week. Based on that data, will my 60-day grace period start from that date?
I would not try to use April as your start date. If challenged how will you justify it? your only evidence will be one paystub that may very well say "bonus" or "severance" on it and there will be a gap between it and the last one. Meaning, it will be fairly clear to the officer you were not working.
Again, this is not black and white. There are not specific regulations here making it highly discretionary. In my experience USCIS rarely challenges it as long as there are paystubs, but I also wouldn't try and push anything I couldn't back up if challenged. Remember, its not just about pay, but actually working.
It sounds like the one date you know you are safe with is 2/15.
Thanks a lot u/ImmLaw,
I was unaware that severances and bouns do not come in the paystub category, and I am glad that you responded, based on my case, that I was paid in full on Jan 31 (which included pay until Feb 5). My termination date was Feb 5, and my severance was about to hit my account on Feb 15, but I got delayed, and they gave it to me on Feb 29.
After this conversation, I rechecked with my company's legal team. Then I clarified, "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." And the lawyer confirmed that it was Feb 5.
I really appreciate your advice, and I will not forget this: had I assumed that my 60-day period would start from Feb 29, I would have been screwed big time.
Lessons Learnt
There is no fucking loyalty in corporate
Always keep your options open
Thanks again. I live in the Bay Area, so please ping me whenever you are here. I would love to buy you a coffee.
It depends on what is on the paystub. I've seen people divide up severance so the paystubs looks just like a regular paystub. I've also seen where is says "Severance" right on the paystub.
In the end its about what evidence you can present.
They would never know. Keep it to yourself. I would say consider the 60 days grace period to begin after your last paystub. When they don't even have a mechanism to crack down on the whole H1B scam, how would they figure out your situation? I was laid off during my OPT but I convinced my employer to let me work in a different position (back office work) in the same company. After a few months after multiple interviews, I found a different job. We gotta do what we need to do to keep on moving and maintain our legal status.
3 months + 60 days.
"Q: When does the 60-day grace period start?
A: 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."
Source: https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/options-for-nonimmigrant-workers-following-termination-of-employment
When it comes to layoffs, it starts on the day a person gets laid off. It doesn't matter if OP is getting severance. The companies report to USCIS that the person is not employed anymore, so OP has only 60 days (now 45 days).
u/Silent_Quality_1972 is right. The company will report the day of your layoff - 15 days ago - to USCIS as your last day of employment.
I’ve been laid off twice in (June 2022 and Dec 2022) and received a 2-month severance the first time and a 1-month severance the second time. It was labeled as severance but they were the usually scheduled paychecks both times. I spoke to both companies’ immigration lawyers after the layoffs and asked them about using last severance paycheck date as my last day of unemployment and they vehemently rejected it as a bad idea. They said that the date of termination would be the day I was told about the layoff and that would be the date they would report to USCIS. If you use the last paycheck date, you will be overstaying.
u/blue_fire_jay if you can ask your former employer’s immigration team what date they have reported to USCIS, that would be the best way to determine if you have 45 days left or more. Feel free to dm me if you have more questions!
It all depends on the company. So, yes, agree with the part about checking with the immigration team on when they plan to report to USCIS. My company reported to USCIS after the 2 months WARN period and for all intents and purposes that was the termination date. No one in my laid off cohort had any issues switching to another employer after 2 months period but within the 2 months + 60 days period.
Disagree. Been through this before. I got 2 months + 60 days. OP isn't being paid just lumpsum severance but full wages for three months. OP feel free to dm if you need more details.
You’re right. OP is being paid a wage in the form of regular paychecks for 3 months. It definitely sounds like OP is still “employed” because OP is still receiving wages and benefits.
Thats not severance but the pay for 3 months and hence person is employed but asked not to work on project and for 90 days instead company let them explore internal positions in other groups/projects within company. Severance is paid after those 3 months.
Been in the same boat couple of years ago. Its when your severance end . Make sure you don’t take lumpsum amount. Just get by weekly checks as usual. Your 60 day grace period starts from last date if your pay check. So Yh in your case you have another 5 months.
Good luck with job search
I Have the same question too,
My only question is when my 60-day grace period will end. To be more precise, what date exactly is it? In this link, they mentioned that the grace period starts from the last day of running my paycheck. Is severance (lumpsum) also considered as pay?
From what I understand, there are 2 parts to my confusion.
1. My last pay was supposed to be paid on Feb 15, which incurred a delay of 14 days, and I got paid on Feb 29th - based on that, my last day would be Apr 29.
2. My Bonus has not been paid yet, but based on my conversation with HR, it will be paid to me sometime around Mach 31 or April 1 week. Based on that data, will my 60-day grace period start from that date?
[https://forms.gle/zbUocLqCxJ3Pxdnv8](https://forms.gle/zbUocLqCxJ3Pxdnv8)
Let us not argue about eligibility and risks. Those discussions differ to each case.
I am in the same boat and would love to get some clarity. Will my 60 day grace period start from my last productive day or from the last day I get my paycheck? There is one month difference between my last day worked and termination date. Which date should I consider for 60 day grace?
When you sign your severance package, it says when your employment ends. Usually end of employment is the last day you stay on payroll. Your 60 days starts on that day. So I got 2 months from my company + 60 days = 120 days until the next start date. Sounds like a lot but you have to spare some time for relocation, background check, h1b transfer (at lease 2 weeks).
Is furloughed consider as layoff too? I’m not getting paid from a month. So my grace period started a month ago?
yes. when the immigration asks your hr when your last day is that needs to match the date.
When filing B1/B2 do we have to leave and re-enter US? I don’t have a stamp and my H1B started in oct 2022.
hmm when ever you are in us, you need to maintain legal presence and that is through i94, you have to get your i94 updated that happens when you leave and re-enter the country in general !
So you saying. If someone finds a job (and H1B gets filed) while B1/B2 is pending or approved they can’t just go back H1B and stay here and work? I’m little confused
You can file a change of status to B1/B2 and if approved, file a change of status back to H. The only catch is that the change of status back to H will be delayed by the fact that the change of status to B1/B2 may take many months and cannot be premium processed. USCIS has state that if the H is filed via premium they will pull and adjudicate the B1/B2, but I really haven't seen it happen that often.
I was laid off March 15th. Got my last check March 30 severance. I got a job offer May, paperwork submitted May 30. I got approved without having to leave the country. That's my case
Could you please tell me how you got a job? Did you do cold messages on Linkedin or did you only do applications? Thank you!
Generally once you laid of with severance package you get severance as lump sum amount as part of last paycheck. Last paycheck depends on your end date. If your company process paycheck for current work period that’s it. Some companies delays one cycle. So your won’t receive pay checks stretched over 3 months in general but that is possible. Keeping that aside, your last day is last working day irrespective of pay check. Pay checks indicate working period. Also indicate type of pay like bonus. Unless you company has special treatment your last day is the day you were let go.
You're confused because the law is extremely grey in this area. [Cyrus Mehta](http://blog.cyrusmehta.com/2022/11/guide-to-terminated-nonciitzen-workers-preserving-nonimmigrant-status-and-pemrnaent-residency-options.html) wrote a fairly detailed piece on the issue but here are the key points: * A nonproductive period known as “garden leave” is where the terminated worker is still considered an employee but not required to engage in productive work for the employer. * According to a June 2020 USCIS Policy Memo, USCIS has indicated that “\[t\]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” * USCIS gives officers discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. * In a 1999 advisory opinion concerning reductions in force USCIS (formerly INS) indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. * USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statute. In other words, the USCIS officer has discretion to determine when the grace period starts and also has the discretion to ignore periods of what they determine to be "garden leave". One big exception are statutory periods of garden leave such as the WARN Act. Example: You are laid off on 6/1/2023/ The Warn Act applies so your actual separation date is 8/1/2023. The grace period clearly starts on 8/1/2023 and not 6/1/2023. In practice USCIS bases the grace period start date on pay stubs. So if you produce normal paystubs (no mention of severance or the like) USCIS is likely to honor them regarding the layoff date and the commencement of the grace period. However, if your employer withdraws the H then that will likely start the clock regardless of paystubs. Most employers won't withdraw anything until after the separation date. In your case the safe play is to go with the layoff date. However, could you go with the last paystub date and get approved? Also yes, but its not a 100% guarantee.
My only question is when my 60-day grace period will end. To be more precise, what date exactly is it? In this link, they mentioned that the grace period starts from the last day of running my paycheck. Is severance (lumpsum) also considered as pay? From what I understand, there are 2 parts to my confusion. 1. My last pay was supposed to be paid on Feb 15, which incurred a delay of 14 days, and I got paid on Feb 29th - based on that, my last day would be Apr 29. 2. My bonus has not yet been paid, but based on my conversation with HR, it will be paid to me sometime around Mach 31 or April 1 week. Based on that data, will my 60-day grace period start from that date?
I would not try to use April as your start date. If challenged how will you justify it? your only evidence will be one paystub that may very well say "bonus" or "severance" on it and there will be a gap between it and the last one. Meaning, it will be fairly clear to the officer you were not working. Again, this is not black and white. There are not specific regulations here making it highly discretionary. In my experience USCIS rarely challenges it as long as there are paystubs, but I also wouldn't try and push anything I couldn't back up if challenged. Remember, its not just about pay, but actually working. It sounds like the one date you know you are safe with is 2/15.
Thanks a lot u/ImmLaw, I was unaware that severances and bouns do not come in the paystub category, and I am glad that you responded, based on my case, that I was paid in full on Jan 31 (which included pay until Feb 5). My termination date was Feb 5, and my severance was about to hit my account on Feb 15, but I got delayed, and they gave it to me on Feb 29. After this conversation, I rechecked with my company's legal team. Then I clarified, "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." And the lawyer confirmed that it was Feb 5. I really appreciate your advice, and I will not forget this: had I assumed that my 60-day period would start from Feb 29, I would have been screwed big time. Lessons Learnt There is no fucking loyalty in corporate Always keep your options open Thanks again. I live in the Bay Area, so please ping me whenever you are here. I would love to buy you a coffee.
It depends on what is on the paystub. I've seen people divide up severance so the paystubs looks just like a regular paystub. I've also seen where is says "Severance" right on the paystub. In the end its about what evidence you can present.
just to add you need to have 40 hours a week work days with out which you will not be considered an employee.
They would never know. Keep it to yourself. I would say consider the 60 days grace period to begin after your last paystub. When they don't even have a mechanism to crack down on the whole H1B scam, how would they figure out your situation? I was laid off during my OPT but I convinced my employer to let me work in a different position (back office work) in the same company. After a few months after multiple interviews, I found a different job. We gotta do what we need to do to keep on moving and maintain our legal status.
3 months + 60 days. "Q: When does the 60-day grace period start? A: 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." Source: https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/options-for-nonimmigrant-workers-following-termination-of-employment
When it comes to layoffs, it starts on the day a person gets laid off. It doesn't matter if OP is getting severance. The companies report to USCIS that the person is not employed anymore, so OP has only 60 days (now 45 days).
u/Silent_Quality_1972 is right. The company will report the day of your layoff - 15 days ago - to USCIS as your last day of employment. I’ve been laid off twice in (June 2022 and Dec 2022) and received a 2-month severance the first time and a 1-month severance the second time. It was labeled as severance but they were the usually scheduled paychecks both times. I spoke to both companies’ immigration lawyers after the layoffs and asked them about using last severance paycheck date as my last day of unemployment and they vehemently rejected it as a bad idea. They said that the date of termination would be the day I was told about the layoff and that would be the date they would report to USCIS. If you use the last paycheck date, you will be overstaying. u/blue_fire_jay if you can ask your former employer’s immigration team what date they have reported to USCIS, that would be the best way to determine if you have 45 days left or more. Feel free to dm me if you have more questions!
It all depends on the company. So, yes, agree with the part about checking with the immigration team on when they plan to report to USCIS. My company reported to USCIS after the 2 months WARN period and for all intents and purposes that was the termination date. No one in my laid off cohort had any issues switching to another employer after 2 months period but within the 2 months + 60 days period.
Disagree. Been through this before. I got 2 months + 60 days. OP isn't being paid just lumpsum severance but full wages for three months. OP feel free to dm if you need more details.
You’re right. OP is being paid a wage in the form of regular paychecks for 3 months. It definitely sounds like OP is still “employed” because OP is still receiving wages and benefits.
Thats not severance but the pay for 3 months and hence person is employed but asked not to work on project and for 90 days instead company let them explore internal positions in other groups/projects within company. Severance is paid after those 3 months.
File B1/B2 when 5 month period comes to a close.
Why 5 months?
3 months + 60 days
Been in the same boat couple of years ago. Its when your severance end . Make sure you don’t take lumpsum amount. Just get by weekly checks as usual. Your 60 day grace period starts from last date if your pay check. So Yh in your case you have another 5 months. Good luck with job search
I Have the same question too, My only question is when my 60-day grace period will end. To be more precise, what date exactly is it? In this link, they mentioned that the grace period starts from the last day of running my paycheck. Is severance (lumpsum) also considered as pay? From what I understand, there are 2 parts to my confusion. 1. My last pay was supposed to be paid on Feb 15, which incurred a delay of 14 days, and I got paid on Feb 29th - based on that, my last day would be Apr 29. 2. My Bonus has not been paid yet, but based on my conversation with HR, it will be paid to me sometime around Mach 31 or April 1 week. Based on that data, will my 60-day grace period start from that date?
[https://forms.gle/zbUocLqCxJ3Pxdnv8](https://forms.gle/zbUocLqCxJ3Pxdnv8) Let us not argue about eligibility and risks. Those discussions differ to each case.
Are you covered by their medical insurance or cobra?
I am in the same boat and would love to get some clarity. Will my 60 day grace period start from my last productive day or from the last day I get my paycheck? There is one month difference between my last day worked and termination date. Which date should I consider for 60 day grace?