Throughout my years of practicing immigration law, one of the most common client questions has been “Is there an H-1B grace period?” and “Is there a grace period if I am laid off while on H-1B?” For all these years, I have had to respond that sadly there is no such thing. However, that has changed recently! As of January 2017, there is a new regulation (8 CFR §214.1(l)(2)), which provides for a 60 day grace period for foreign nationals in H-1B, E-1, E-2, E-3, H-1B1, L-1, O-1, and TN status. The regulation also applies to the dependents of foreign nationals holding one of these classifications.
The regulation states that a foreign national holding H-1B status (or one of the other classifications listed above) will not be considered to have failed to maintain nonimmigrant status based solely on his/her termination of employment, for up to 60 days or until the end of the authorized validity period, whichever is shorter.
What does this mean?
- First, keep in mind that the “grace period” is up to 60 days, or the end of the current period of stay, whichever is shorter. So if the foreign national’s I-94 will expire in 40 days, that is the maximum duration of the grace period, not the full 60 days (the 40 days plus an additional 20 days).
- During the grace period, the foreign national may change employers, file a change of status to another classification, or prepare to leave the US. The foreign national is not authorized to work during the grace period.
- The grace period can be used one time per validity period.
- This benefit is at the discretion of USCIS – they can deny or shorten the grace period on a case-by-case basis.
While this H-1B (or other nonimmigrant visa classification) grace period is not guaranteed, it does provide at least the possibility of more flexibility for H-1B holders who need or want to change jobs, and may have a temporary gap in employment. This is a welcome change indeed!
Do you need assistance with a family-based or employment-based immigration matter? Are your looking for an immigration lawyer? Please contact our Richmond, VA-based office at 804-396-3412 or at info@sumnerimmigration.com to learn how we can assist. We look forward to hearing from you!
