On January 17, 2017, a new rule aimed at the retention of immigrant workers and program improvements for high-skilled nonimmigrant workers went into effect. Among other changes, two new regulations provide for grace periods for many nonimmigrants working in the United States. These grace periods provide more time for nonimmigrant workers to enter and leave the U.S. and to change or extend their status in the event they are terminated or leave their jobs prior to their planned end date.
10-day grace period for nonimmigrant workers
The new regulations expand which visa classifications are eligible for 10-day grace periods. H-1B, O-1 and P beneficiaries and dependents were already eligible for these grace periods and now individuals in E-1, E-2, E-3, L-1 and TN status are also able to get this benefit. Nonimmigrants in any of these categories are eligible for two grace periods of up to 10 days, including an initial 10-day grace period that allows them to enter the U.S. prior to the validity start date on their petition and a 10-day grace period at the end of the validity period to allow them time to make arrangements to depart the United States. Nonimmigrant workers are generally not permitted to work during the grace periods but are eligible to file for changes or extensions of status during this time.
The grace periods are not automatically provided, but are granted as a matter of discretion on a case by case basis. USCIS and border officials have discretion to grant a full 10-day grace period, some portion of the grace period or no grace period. You should always refer to your I-94 (which can be found online, or on your I-797 approval notice if you do a change or extension of status) to determine when your status ends.
60-day grace periods for nonimmigrant workers
In the past, people with non-immigrant visas that lost their jobs had to leave the U.S. immediately. This caused a significant amount of chaos for workers and also subjected them to periods of unauthorized stays. In many cases these workers had homes in the U.S., children in school and had lived in the U.S. for years.
The new regulations offer more flexibility for workers who are terminated or whose employment ends prior to the validity date on their petition, by providing for a grace period of up to 60 days for individuals in E–1, E–2, E-3, H-1B, H-1B1, L–1, O–1 or TN status. The grace period lasts for up to 60 consecutive days, or until the end of the authorized validity period on your petition, whichever is shorter. For example, if you had valid E-2 status until June 30, 2017 and you were fired June 1, 2017, you would only have a grace period up to June 30, 2017, rather than the full 60-day grace period. Nonimmigrant workers are generally not permitted to work during the grace period and these grace periods can be eliminated or shortened as a matter of discretion. Additionally, if you do not use the full 60 days, there is no ability to use those days in the future. The 60-day grace period can be used once for each authorized validity period, so if a nonimmigrant worker is in the U.S., uses the 60-day grace period and then files a change or extension of status for a new position, she will be eligible to get the 60-day grace period for that new position if the employment ends prior to the planned end date for the new job.
These grace periods give workers more time to get settled when they are first starting work in the U.S. and also give workers the ability to organize their affairs prior to leaving at the end of their petition’s validity date. Additionally, if their employment ends unexpectedly, the grace period provides some time to find a new job and file for an extension or change of status. The grace period does NOT permit you to leave the country and reenter to claim the rest of your time.
For more practical information and legal advice, contact Scott Legal, P.C. Call 212-223-2964 or email firstname.lastname@example.org for a consultation.
Kelly R. LeGrand Weiner, Esq. is the Managing Attorney at Scott Legal, P.C. She can be reached at 212-223-2964 or by email at email@example.com.
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