Grace Period for Nonimmigrant Workers Following Loss of Employment

A U.S. Department of Homeland Security (DHS) regulation affecting highly skilled workers went into effect on January 17, 2017. One of the key components of the new regulation is the availability of a grace period of up to 60 days for certain categories of nonimmigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status, following the loss of employment. It is important to understand the eligibility criteria and requirements to qualify for the grace period, to make sure that the affected worker and dependents can successfully apply for a change of status or an extension of status.

Discretionary Maximum 60-Day Grace Period

Prior to the implementation of this new regulation, in most situations, a nonimmigrant worker who was laid off would have fallen out of status immediately. Given that a person typically must be in valid status at the time of filing for a change or extension of status, in order for the U.S. Citizenship and Immigration Services (USCIS) to approve the request, a sudden layoff tended to present special challenges to foreign national workers.

Fortunately, the new regulation provides for a discretionary 60-day grace period during which an H1B worker who ceases employment may be considered to be maintaining status for the purposes of filing for a change or extension of status. As discussed in the MurthyDotCom NewsBrief, Overview of Final Regulation for High Skilled Workers (23.Nov.2016), upon the termination of employment, the eligible nonimmigrant worker has up to 60 days – or until the expiration date of the current I-94, whichever period is shorter – to be sponsored for a change of employer, apply for a change of status, or simply prepare for departure from the United States.

No Designated Form or Format to Request Grace Period

There is no designated form or format for requesting the grace period. If requesting a change of employer or change of status during the grace period, a standard petition or application must be filed. One may include a cover letter or the like with the application or petition that requests the grant of the grace period. But, even if it is not formally requested with the application or petition, the request is inferred to be requested based on the filing of the change of status or change of employer within 60 days of ceasing to work in the position.

Additional Useful Information on the Grace Period

There are additional details that must be understood about the grace period:

• The grace period must be used consecutively and at one time. Unused days may not be saved or carried over to another grace period.
• A worker may use the grace period once per the petition’s validity period. So, for example, if a worker is laid off, uses the grace period, and then is the beneficiary of an approved H1B change of employer petition, that individual may potentially be eligible again for a new 60-day grace period upon cessation of employment.
• The USCIS has the discretion to shorten or deny the grace period of an individual, on a case-by-case basis. The USCIS states that some reasons for denying or shortening the grace period include violations of status, unauthorized employment during the grace period, fraud, or criminal convictions.
• In addition to being a discretionary benefit, in practice, it is also one that generally can only be granted or denied by the USCIS after-the-fact. That is because, as indicated above, the benefit generally can only be requested if the foreign national files a change of employer or change of status request with the USCIS during the grace period. Only then does the USCIS typically have an opportunity to review the foreign national’s circumstances to determine whether the full 60-day grace period should be granted.
• The regulation does not differentiate between a worker who is terminated and one who quits. Therefore, the 60-day grace period should be available in either situation, though the USCIS potentially could take that issue into consideration in determining the amount of time to allow as a grace period.
• Employment is not authorized during the grace period. An H1B worker may, however, begin employment with a new petitioner after the petition has been filed under the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21), as described below.

H1B Portability Permitted During Grace Period

The regulations provide clarity regarding when a laid-off H1B worker, who finds new employment, is permitted to resume working. In order to qualify for portability under AC21, the new H1B petition must be filed while the worker either is in H1B status or has a timely filed H1B extension petition. “In-status” includes the grace period described above. Therefore, if an H1B change-of-employer request is filed during the grace period, the H1B worker typically is permitted to resume working upon the filing of the petition.

Conclusion

The availability of this grace period should provide some level of protection and flexibility to nonimmigrant workers. Because this is a fairly recent immigration benefit, it remains to be seen how liberal the USCIS will be in granting these requests. As more information becomes available, details will be posted on MurthyDotCom.

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