January 2017 USCIS Change in H-1B Holder Rules
In January 2017, USCIS established a set of rules that favor employment-based non-immigrants facing a layoff. Per the Department of Homeland Security (DHS), H-1B visa holders can apply for a grace period of up to 60 days if they are dealing with a job loss through no fault of their own.
During this grace period, H-1B holders can do one of two things: They can find another qualified job or change their visa status. This grace period applies to non-immigrant workers in the country under an H-1B, H-1B1, L1, O1, E3, or TN status. It gives the worker the opportunity needed to continue employment until their active visa ends.
H-1B Visa I-94 Grace Period or Expiration Date?
What happens when your I-94 expires earlier than the H-1B petition approval notice? The USCIS regulation 8CFR 214.1(I)(2) clarifies this situation. It states that, as an H-1B holder, you receive a 60-day grace period or can remain in the U.S. until the end of your I-94, whichever comes first.
In summary, if your visa’s authorization ends before the 60-day grace period, you don’t receive the extra time. The grace period is shortened to the date your I-94 expires.
Understanding the Grace Period Clause
The grace period provides H-1B and other visa holders an extension of their “Valid Status” for 60 consecutive days after a job loss. This is a vital designation for those under an employment visa who are trying to find other work and receive an H-1B transfer visa without returning to their home country.
To file a petition with the USCIS for an extension or change of status with an I-94, you need that “valid status” designation. The extra two months gives you the legal status and time required to find another employer willing to file an H-1B petition or to complete a change of status to a different visa category.
Keep in mind that the 60-day grace period does not automatically kick in, and it’s not guaranteed. You must request the grace period upon your job loss notification. The DHS/USCIS has the right to approve or reject your request individually for things like unauthorized employment or any negative charges related to the H-1B holder.
Your immigration lawyer can assist you in navigating this process. However, as long as you remain clear of any fraudulent or illegal activities, you should receive the full grace period.
Re-Applying for Another Grace Period
Only one grace period is provided per visa petition validity period. The only way to re-apply for a second 60-day grace period is to do so under a new H-1B petition.
Should you remain employed with the company that originally laid you off but rehired you after you requested a grace period, you have no more rights to that 60-day request. If they lay you off again, you must leave the country. However, if you found another employer during that grace period, you now have the peace of mind of a 60-day leave if the job loss occurs again.
Grace Periods and Quitting or Resigning
Although we’ve discussed the grace period regulation for layoffs, the terminology does not differentiate between reasons for job loss. So, if you quit or resign, this grace period should apply to you. However, the decision lies in the hands of the USCIS, and those who quit voluntarily are often reviewed in a different light than those who are laid off. The documentation you submit to support your voluntary leave can help substantiate your request for a full grace period.
The intent of this regulation is to aid non-immigrants facing job loss out of their control. By quitting or resigning, you fall out of this category. USCIS can change your stay to ‘out of status.’ Talk to your immigration attorney before you quit or resign.
H-1B Transfers Under a Grace Period
The ‘valid status’ remains until the 60-day grace period expires, or your I-94 expires. After these expirations occur, your designation becomes ‘out of status.’ But if you’re in the process of an H-1B transfer that rolls over beyond Day 60, and you still don’t have the receipt of approval, you should leave the U.S. and re-enter. If you fall in this rushed zone, opt for premium processing and work with your immigration lawyer to ensure you follow all the rules.
Dependents and the Grace Period
When you have dependents relying on your H-1B validity for their EAD employment, their status depends on yours. Since the 60-day grace period keeps you in a valid state, they should be able to work, too. But the USCIS regulation states that you can’t work during this grace period, making it a gray area for your dependents. Your immigration lawyer can give you more advice on this topic.
You’ve received notification of an unexpected job loss and are understandably nervous about what to do next. The first step you should take is to call Visa2US. Our professionals are ready to help you request the grace period, then decide your next move.
We’ll guide you along the way as you apply for a transfer, submit essential documentation, and file for an H-1B Transfer or Change of Status application. Remember, keeping your visa status valid is essential during this transition period, and your contacts at Visa2US know how to get this done right.