Introduction

On November 18, 2016, the Department of Homeland Security (DHS) published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” (see 81 FR 82398) [PDF version]. The rule came into effect on January 17, 2017. To read an overview of all of the changes in the 95-page rule, please see our full article [see article].

Under the new final rule, the DHS amended regulations regarding grace periods for certain nonimmigrants. The new 8 C.F.R. 214.1(l)(1) has been amended to provide two 10-day grace periods for E1, E2, E3, L1, and TN nonimmigrants . H1B, O, and P nonimmigrants are already afforded these 10-day grace periods through other provisions of the Federal Regulations.

Under the new 8 C.F.R. 214.1(l)(2), the DHS may, under certain circumstances, authorize a 60-day grace period for persons in the E1, E2, E3, H1B, H1B1, L1, O1, and TN nonimmigrant classifications. This 60-day grace period is intended to enhance job portability for the specified highly skilled nonimmigrants, and may be used once per each validity period provided that the requirements are met.

In this article, we will examine how the 10- and 60-day nonimmigrant grace periods in the new final rule. Please see the following link to read the text of the amended 8 C.F.R. 214.1 [link].

10-Day Nonimmigrant Grace Periods for Certain Nonimmigrants

The provision for 10-day nonimmigrant grace periods, found in 8 C.F.R. 214.1(l)(1), reads as follows:

(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.

At 82 FR 82435-82436, nonimmigrants in the H1B, O, and P classifications already benefitted from similar 10-day grace period provisions. The new regulation serves to extend similar benefits to nonimmigrants in the E1, E2, E3, L1, and TN classifications (also specifies H1B in this regulation).

The amended provision provides for two 10-day grace periods. The first one occurs during the 10 days immediately preceding the validity period of the petition. The second 10-day grace period comes immediately after the validity period of the petition ends. The 10-day grace period also applies to dependents of the principal nonimmigrant.

8 C.F.R. 214.1(l)(1) makes explicit that an individual may not work during either of the 10-day grace periods unless he or she is otherwise authorized for employment under 8 C.F.R. 274a.12. This is because an individual may only work under E1, E2, E3, H1B, L1, or TN status during the validity period of the applicable petition. However, 8 C.F.R. 214.1(l)(3) permits an alien on a 10-day grace period to apply for an extension of status or to seek a change of status under 8 C.F.R. 248.1. Such an alien may also seek employment authorization in compelling circumstances under 8 C.F.R. 204.5(p), if otherwise eligible [see article].

60-Day Nonimmigrant Grace Period for Certain Nonimmigrants

The provision for 60-day nonimmigrant grace periods, found in 8 C.F.R. 214.1(l)(2), reads as follows:

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

The 60-day nonimmigrant grace period is one of the more noteworthy provisions to arise from the new final rule.

First, the 60-day nonimmigrant grace period is available only to nonimmigrants in the following classifications:

E1;
E2;
E3;
H1B;
H1B1;
L1;
O1; and
 TN.

The purpose of the 60-day grace period is to prevent a nonimmigrant in one of the above classifications from being considered to have failed to maintain his or her nonimmigrant status solely based on ceasing the employment upon which his or her status was based. The cessation of employment for such a nonimmigrant is a serious problem, as it leads to the nonimmigrant being considered to not be maintaining his or her status.

It is important to note that this 60-day grace period applies only once each petition validity period. This means that if a nonimmigrant avails him or herself to the 60-day grace period once during a validity period, he or she would be unable to make use of it again in the same validity period.

The 60-day grace period will last for 60 days. However, if it begins with fewer than 60 days remaining in the alien’s authorized validity period, it will last only until the end of the authorized validity period. The DHS reserves the authority in the regulation to shorten or eliminate the 60-day grace period in its discretion. However, the DHS may not extend the grace period beyond 60 days.

Unless otherwise authorized under 8 C.F.R. 274a.12, an alien may not engage in employment during the 60-day grace period. However, the alien may apply for an extension of stay or a change of status during the grace period. Such an alien may also seek employment authorization in compelling circumstances under 8 C.F.R. 204.5(p) if otherwise eligible.

Purpose of the 60-Day Grace Period

At 82 FR 82436, the DHS explains that the purpose of the 60-day nonimmigrant grace period is “[t]o enhance job portability for these high-skilled nonimmigrants.” The 60-day nonimmigrant grace period accomplishes this goal by giving specified nonimmigrants 60 days to remain in the United States after the cessation of employment without violating their status.

Although a nonimmigrant may not work during the grace period, he or she may explore options for continuing to remain and work in the United States beyond 60 days. For example, a nonimmigrant may entertain a job offer from an employer that is willing to file a new nonimmigrant petition along with an extension of stay on his or her behalf. If a new petition and extension of stay request is approved, the nonimmigrant would be again eligible for a 60-day nonimmigrant grace period during the new authorized validity period. Under 8 C.F.R. 214.1(l)(3), the nonimmigrant may also seek an extension of stay or change of status. At 82 FR 82438, the DHS notes that one option in certain cases may be for the nonimmigrant to seek a change of status to B1 or B2 visitor.

At 82 FR 82439, the DHS explained that it declined to allow employment authorization during the 60-day grace period because the grace period is designed “to facilitate the ability of qualified nonimmigrants to transition to new employment in the United States, seek a change of status, or prepare to depart the United States.” Similarly, the DHS declined to allow nonimmigrants on 60-day grace periods to start their own businesses.

DHS’s Discretion in Authorizing, Shortening, or Eliminating the 60-Day Grace Period

At 82 FR 82439, the DHS clarifies its discretion to eliminate or shorten a grace period. The DHS explains that when a petitioner files a nonimmigrant visa petition requesting an extension of stay or a change of status, the “DHS will determine whether facts and circumstances may warrant shortening or refusing the 60-day grace period on a case-by-case basis.” If, at that time, the DHS determines that “credible evidence” supports authorizing the grace period, the DHS will consider the individual to have maintained valid nonimmigrant status for the 60 days following the cessation of his or her employment. The DHS explains that such a determination will be made on a case-by-case basis after considering the “totality of the circumstances.”

The DHS explains that many cases may result in grants of 60-day grace periods, but other cases “may present factors that do not support the favorable exercise of discretion.” The DHS provides a non-exhaustive list of circumstances that may result in it determining, in its discretion, that the 60-day grace period should be shortened or eliminated entirely:

Status violations;
Unauthorized employment during the grace period;
Fraud or national security concerns;
Criminal convictions; and/or
Other reasons.

Conclusion

The 60-day nonimmigrant grace period provides limited relief to individuals in certain nonimmigrant statuses whose employment is terminated. For example, the provision should prove especially useful to individuals on H1B status who may have the ability to seek to exercise H1B portability [see article]. However, in order for the 60-day grace period to be granted upon the filing of a new petition and an extension of stay, or a change of status, the DHS must determine that approving the 60-day grace period is justified based on the totality of the circumstances. An individual in one of the aforementioned nonimmigrant categories who loses his or her employment should consult with an experienced immigration attorney immediately for an individualized case assessment and an explanation of the available options that he or she may have going forward.