Maintenance of Status and Grace Periods for Nonimmigrant Workers

Foreign nationals in the United States must maintain their status and lawful presence to remain compliant with U.S. immigration laws. Many nonimmigrants in the United States have an employment-related immigration status for them to perform a specific job and legally remain in the country. When nonimmigrants with employment-related status have their employment terminated, there may be uncertainty on if and how individuals can continue to remain in status and avoid accruing unlawful presence. There are several rules and options related to these occurrences.

10-day grace periods

Under 8 CFR §214.1(l)(1) H-1B, O, and P nonimmigrant visa-holders as well as E-1, E-2, E-3, L-1, and TN visa holders may be granted a 10-day grace period before their authorized employment status begins. These same visa holders may be granted a 10-day grace period after their employment status ends. The 10-day “grace period” does not apply to if the employee has been terminated or has failed to maintain status. It applies only to persons who complete their period for admission and are discretionary, as USCIS need not grant them particularly for extension or change of status applications. The 10-day period is considered a period of authorized stay and is therefore counted toward the beneficiary’s maximum allowable stay period. During the 10-day period to depart, the person may change status or extend status. There is also a 60-day grace period, but the 10-day grace period may not be added to the 60-day grace period described below.

60-day grace periods

Under 8 CFR §214.1(l)(2), up to a 60-day grace period may also be granted to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN visa holders when these visa holders experience termination of employment. These stays also apply to dependents of the visa holders. If the worker’s original period of authorization expires within 60 days, the worker may only receive an extension up to the end of his/her original period of authorized stay. These grace periods may be given both when employment termination of the worker is voluntary and involuntary. During these 60 days, the worker can search for new employment to extend their status or apply to change their status. If after the 60 days are up the worker has not found new employment or applied to change status, the worker may be forced to leave the United States. The purpose of the provision is to give the high skilled worker an opportunity to find other employment or depart but not to start his or her own business. A non-immigrant can be granted multiple 60-day grace periods throughout their time in the United States, but they may only have one 60-day grace period per validity period. USCIS may shorten or refuse the 60-day grace period where the applicant has been involved in immigration violations such as unauthorized employment, fraud, criminal or national security issues.

Finding new employment

During the 60-day grace period, nonimmigrants can search for new employment. Under H-1B portability, workers who held H-1B status could find a new employer and have the new employer file and H-1B petition. Once the H-1B petition is filed, the worker may start working while waiting for approval. To qualify for H-1B portability, the worker must have been lawfully admitted, be in the period of authorized stay, and must not have worked without authorization.

Change of status

Non-immigrants may also use the 60-day grace period to apply for a change of status. For example, a non-immigrant who once held an employment-based visa may apply for a B-1 or B-2 visitor visa. It is important to note that if a non-immigrant chooses to change status, the activities and work they are permitted to engage in could change with their status. If a non-immigrant applies to change their status during the grace period, they will not accrue unlawful presence until their petition is fully decided. Nonimmigrants and/or their employers can apply for expedited judgement when requesting a change of employment or status under the following circumstances: when the foreign national employee or the company are subject to severe financial loss, there are humanitarian emergencies, if the business is a nonprofit organization that furthers US interests, the requested is for the interest of the US government, or if there is a clear error by the USCIS.

If a non-immigrant worker is not able to find new employment or change status within the 60-day grace period, they may have to leave the country. Once they leave, they may continue applying for admission and employment.