Figuring out whether you are still in status or when your period of authorized stay expired can be confusing when the unfortunate job loss or job termination occurs. This article seeks to provide some clarification. On January 17, 2017, a new rule aimed at assisting and improving the visa program for high-skilled nonimmigrant workers came into effect. Most notable among the changes were two new regulations providing for grace periods for nonimmigrants working in the United States. These grace periods provide more time for nonimmigrant workers to enter and leave the U.S. and to change or extend their status in the event they are terminated or leave their jobs prior to their planned end date.
10-day grace period for nonimmigrant workers
While H-1B, O-1 and P beneficiaries and dependents were already eligible for a 10 day grace period, the new regulations now allow individuals in E-1, E-2, E-3, L-1 and TN status to benefit as well. This grace period includes an initial 10-day grace period that allows these visa holders to enter the U.S. prior to the validity start date on their petition and a 10-day grace period at the end of the validity period to allow them time to make arrangements to depart the U.S. Nonimmigrant workers are generally not permitted to work during the grace periods but are eligible to file for changes or extensions of status during this time.
It is important to note that the grace periods are not automatically provided but are granted as a matter of discretion on a case by case basis. USCIS and border officials have discretion to grant a full 10-day grace period, some portion of the grace period or no grace period at all. To determine when your status expires, you should always refer to the I-94 electronically issued by CBP after entry (accessible online here) or, if you applied for a change or extension of status, on the I-797 approval notice you received.
60-day grace periods for nonimmigrant workers
In the past, people with non-immigrant visas who lost their jobs had to leave the U.S. immediately. This often left workers who had homes in the U.S., children and who had been in the US for years with little time to secure alternative employment or to get their affairs in order without being subjected to periods of unauthorized stay and jeopardizing future immigration options.
The new regulations offer greater opportunity for workers who have been terminated or whose employment ends prior to the validity end date on their petition to stay on their feet by providing a grace period of up to 60 days for individuals in E–1, E–2, E-3, H-1B, H-1B1, L–1, O–1 or TN status. The grace period lasts for up to 60 consecutive days, or until the end of the authorized validity period on your petition, whichever is shorter. Example: if you have valid H1B status until April 4, 2021 but were laid off on January 1, 2020, you would only have a grace period up to March 25, 2020 rather than April 4, 2021. Nonimmigrant workers are generally not permitted to work during the grace period and these grace periods can be eliminated or shortened as a matter of discretion.
Additionally, if you do not use the full 60 days, there is no ability to use those days in the future. The 60-day grace period can be used once for each authorized validity period. This means if a nonimmigrant worker in the U.S. uses the 60-day grace period and then files a change or extension of status for a new position, she will be eligible for a new 60-day grace period for that new position if the employment ends prior to the planned end date for the new job.
The big benefit of the 60 day grace period is to provide time for a non-immigrant worker who suddenly finds themselves out of a job to find a new job and file that extension or change of status. But beware! The grace period does NOT permit you to leave the country and reenter to claim the rest of your time.