The 10-Day and 60 -Day Employment Based Grace Periods: A Primer

May 12, 2017

The 10-Day and 60-Day Employment Based Grace Periods: A Primer

By Michael Bergman, Esq., Associate Attorney at the Nair Law Group, APC.

 

On January 17, 2017, a new Department of Homeland Security final rule titled Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” took effect and is now law. The subject of much anticipation, this rule contains a set of regulations providing highly skilled foreign workers much needed flexibility in several areas such as maintaining work authorization, nonimmigrant status eligibility, and immigrant status eligibility.

 

Prominent among these regulations are a pair of 10-day and 60-day grace periods for certain employment based nonimmigrant status holders including those under E-1, E-2, E-3, H-1B, L-1 or TN status. These periods function in different ways. The 10-day grace period allows enter on a qualifying status 10 days prior to the actual start date of the visa validity period and remain in the US up to 10 days following the end date of the visa validity period. An individual can utilize a separate 10 day period prior to the start of and following the end of the visa validity period. For example, an H-1B holder with a validity period from October 1, 2017 to September 30, 2020 can enter the US on September 21, 2017 and remain in the US until October 10, 2020. The earlier start allows status holders to better meet the employer’s needs while the later conclusion allows the individual additional time to properly conclude their affairs in the US. 

 

As welcome as this new eligibility provision is, the real “game changer” for most is the 60-day grace period. This grace period comes into play should an employer terminate the employment of an individual in one of the aforementioned categories. In such a case, the affected individual can receive a 60-day grace period during which they can either: (1) find a new employer and transfer/extend their current status; (2) change to another valid status; or (3) wrap up their personal affairs before departing the United States. During this time the individual continues to remain in authorized period of stay.

 

In the past, USCIS had considered an individual who had been terminated from their employer to be in violation of their status from the termination date onward. Prior to these new regulations, terminated individuals would not be afforded any ability to transfer, extend, or change their status, but would need to depart the country immediately. Now, with this new regulation in place, how does this grace period apply, and how can an individual properly avail oneself of this benefit?

 

Like the 10-day grace period, the 60-day grace period does not provide extended work authorization. Affected status holders are allowed to remain in the country lawfully, but cannot work. For change of status petitions and transfer petitions that do not provide “portability” (i.e., the ability to port one’s status to a new employer based on a filed transfer petition) one cannot begin working until the newly filed petition is approved. However, assuming the petition is filed during the 60-day grace period, they are allowed to continue to remain in the country lawfully. As to transfer petitions that typically provide “portability” (i.e., H-1B applications), there is no current consensus on whether one can actually port during the grace period and start working immediately once the petition is filed.

 

On the one hand, some argue that, based on the wording of the final rule and a chain of connecting statutes [8 CFR 274a.12(b)(9) and 8 CFR 214.2(h)(2)(i)(H)], an H-1B holder, who would be able to port their H-1B under normal circumstances, should be able to do so during the grace period as well. Further, these individuals argue, that not allowing one to port would seemingly contradict the intent of this provision. The final rule specifically states that a goal of the 60-day grace period “to further enhance job portability” and to be able to transition to new employment accordingly. The inability to port during this time would directly hamper these goals and force individuals or employers to either pay extra for premium processing, wait for months until the new employment can commence.

 

On the other hand, some practitioners argue that based on how portability is discussed in the final rule and how the grace period actually affects the terminated individual, portability does not apply. Specifically, in this context, USCIS discusses how portability applies to those who are either currently in H-1B status, or are in a period of authorized stay as a result of a timely filed H–1B extension petition. When an H-1B holder is laid off and enters the 60-day grace period, they are no longer technically maintaining H-1B status. Further, though they remain in a type of “period of authorized stay” it is not a period that is based on a filed H-1B extension application. Therefore, H-1B holders would not qualify for portability under the grace period.

 

There is no consensus about the ability to port and as of yet, USCIS has not issued any further guidance to clarify this issue. As such, if one is in a situation where they need to utilize this grace period, it is important to consult with a qualified immigration professional to go over both options and decide how best to proceed.

 

How does this grace period actually play out in practice? In filing for a transfer or change of status during the grace period, what should one submit to ensure a smooth filing?

 

Say an H-1B holder works for Employer A with a validity period from October 1, 2016 to September 30, 2019. On May 1, 2017, due to company-wide cost cutting measures, Employer A lays off the H-1B holder. This leaves the H-1B holder with a 60 day grace period until June 30, 2017 to file a transfer petition, file a change of status petition, or depart the US. In this case, the H-1B holder finds a new employer, Employer B, to file an H-1B transfer petition on their behalf. Employer B submits this petition on June 6, 2017 and includes the H-1B holder’s most recent paystubs, the H-1B holder’s termination letter (or other proof of termination on May 1, 2017), a copy of the new regulations entitling the H-1B holder to the 60-day grace period, and a statement explaining that the H-1B holder is subject to this grace and, thus, can file accordingly. USCIS receives the petition on June 7, 2017 and approves the petition on September 8, 2017. If one follows that portability is allowed during the grace period, then they would be able to commence new employment on June 7, 2017 (though some would wait for a few additional days for a receipt notice form USCIS). If one follows that portability is not allowed, then the H-1B holder can begin working for the new employer on September 8, 2017.

 

An affected status holder may only use the 60-day grace period once per validity period, but may receive and use an additional 60 day grace period each time they receive a new authorized validity period in one of the covered statuses above. Say the above unfortunate occurrence repeats itself and Employer B decides to terminate the H-1B holder. In this case, with a new validity period in their possession (June 7, 2017 to June 6, 2020), the H-1B holder could utilize a new 60-day grace period.

 

In light of this discussion, it is important to point out that though codified in the final rule, the 60-day grace period is dispensed and granted at the discretion of USCIS. This means, that USCIS can, based on multiple factors, decide to shorten or dismiss the grace period for individuals on a case by case or even a widespread basis.

 

The new 60-day grace period can indeed be a “game changer” for qualified status holders in general, and in high turnover fields, in particular. This new found flexibility allows such individuals a reasonable amount of time to remedy a once possibly catastrophic situation and remain in the US as productive contributors.