Final rule, effective as of January 17, 2017, has offered several new provisions and changes for various programs used by highly-skilled foreign workers. One of the most important provision is a 60-day grace period for the following statuses: O-1, H-1B, L-1, TN, E-1, E-2, and E-3. This article intends to provide our interpretation of the effects of this final ruling on H-1B holders and hopefuls.

What is a Grace Period?

Currently, those who are in a non-immigrant visa status (H-1B, for example) have a 60-day Grace Period, if the employment that gave them their status ceases before the status’ validity period actually expires. The 60 days are intended to give the petitioner and foreign worker time to organize their next steps: whether to stay or leave the U.S., to look for a new job, get an extension, or make a change in status. The Grace Period provides the alien with additional 60 days during which they are in legal status and are not accruing unlawful residence. You may not work during the Grace Period.

–      Example: You were working for Company A in a three-year H-1B visa status. Your employment ceases with Company A and they no longer need your services. Following the cessation of your job, you have 60 days to find another company to sponsor an H-1B, change your status, get an extension, or organize your personal matters to depart the United States. 

Note: the beneficiary or the foreign worker will have the 60-day Grace Period or until the time their existing status’ validity period ends, whichever is shorter.

–      Example: You are working in H-1B for Company A and they cease your employment 30 days before your three-year H-1B for them ends. You now have the 30 days of the remaining H-1B validity period to figure out your next steps. You no longer qualify for the 60-day Grace Period. 

The 60-day Grace Period can only be used once for each authorized validity period and it must be used consecutively. This means that a person can have multiple 60-day Grace Periods, but they cannot use leftover Grace Period days from a previous Grace Period at a future time.

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Other exemptions to being eligible for the 60-day Grace Period?

Those who are considered to have been part of a fraud, have violated their status, or misrepresented information, will not be eligible for the Grace Period. These individuals must leave the United States immediately upon the revocation or expiration of their current status.

Will the Grace Period be affected depending on who ceases the employment?

Technically, it should not matter whether the employer or the employee has ceased the employment. The foreign worker should have the 60-day Grace Period, if this cessation occurs prior to the expiration of the beneficiary’s authorized validity period. However, we do warn that this is left to the discretion of the USCIS. Although, in general, it should not be a concern, unless the individual is affiliated or convicted of fraud, misrepresentation, violation of status or criminal activity.

Can you travel during your Grace Period?

There is no clear rule prohibiting beneficiaries from traveling outside of the U.S. H-1B non-immigrants may travel and return to the U.S. while their portability petitions are pending, and they must prove at the port of entry (i.e. U.S. airport) that they are eligible to re-enter with that status. If the status is expired, the beneficiary must provide evidence at the port of entry that they have a new status that allows them to enter the United States. There is more involved in this process and various other different scenarios, but ultimately, the burden of proof is upon the beneficiary to show to the agent at the port of entry that they are legally eligible to be admitted into the United States.

Given the complicated nature of re-entry, we do not recommend such travel during the Grace Period. Provided that the Grace Period is a delicate matter and its purpose is for beneficiaries to figure out their next steps and adjust their plans based on their statuses in the U.S., it is best for individuals to use the Grace Period as it is intended.

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The 10-day Grace Period vs. the 60-day Grace Period. What are the differences?

The 10-day Grace Period is different from that of the 60-day Grace Period. The 10-day Grace Period is for those whose visas or validity periods naturally expire, so they have 10 days to leave the country or arrange another situation for themselves. The 60-day Grace Period is for those whose visas or validity periods have not yet ended, but there has been an unexpected early end to the nature of their status.

–      10-day Grace Period Example: You worked for Company A for three years with an H-1B visa. The three years have now been completed and Company A is not sponsoring an H-1B extension for you. You now have a 10-day Grace Period to take care of personal matter regarding your departure back to your country of origin, or you must take appropriate steps about how to legally remain in the United States. 

How can one use the 60-day Grace Period for their benefit?

There are a few things a beneficiary can use the Grace Period to ensure a continued, legal stay in the United States, once the Grace Period is over: extension of stay, change of status, or portability in the case of H-1B visa holders.

–      Portability: In order to qualify, the beneficiary would have to show that he or she has legal authorization to work in the United States and that they had maintained a legal status. The new employer can then petition to have the beneficiary continue in H-1B status with their company. The beneficiary may start working for the new company once that company has filed the petition while the beneficiary was in his or her Grace Period.

– Example: You are in your Grace Period after your work ceased with Company A. Company B files a petition for portability while you are in the 60-day Grace Period. Once the petition is filed by Company B, you start working for them under H-1B again. Your Grace Period that you received because of your H-1B with Company A is now considered used and done, regardless of whether you used all 60 days or not. 

Portability can also refer to an instance where the employer petitions for a change of employment for the same employee, and the employee can start working in that new employment while the case is being adjudicated. Portability will not work, however, if the employer petitions for an employee seeking to continue the same work for the same employer without any change to their employment.

How do you apply for the 60-day Grace Period?

There are no forms that one must fill out. However, the petitioners and their representatives will want to make sure to clearly note that the beneficiary is in valid Grace Period in the change of status, extension, or new petition applications.

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