H1B Visas: 60-day Grace Period
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| "Grace" is Minnesota's official state photograph. |
Speaking of grace, lately I've received a rash of calls from noncitizens who find themselves similarly situated to Mr. Wilden, praying for providential intervention in a recent job loss. Primarily H1B visa holders, these folks have been laid off and are uncertain about their legal status and how to proceed with potential new employment in the United States. The influx is prompted in large part by economic shifts in the Internet Technology (IT) industry that have seen layoffs and scaled-back hiring.
So let's discuss what is allowed. And just to clarify, this is only about NON-immigrant visas (temporary). If there is a change, or more specifically "adjustment" of status to permanent residency, there are different explanations. Yes, very complicated and frustrating. Feel free to reach for the aspirin now.
BACKGROUND
You can learn about H1B visas in general here. But when someone on an H1B visa stops working at their job, voluntarily or involuntarily, that person is no longer in H1B status. In fact, unless they have an application already pending for a different status, that person has no legal permission to be in the United States. This begins the moment employment is terminated, and no official papers need be filed with the government to confirm the termination.
So someone can just quickly apply for another status, right? No, can't do that. The law says one can only change to another status from a valid status. In general, a non-citizen cannot change from one non-immigration status to another unless they are currently in valid status. So f someone on H1B is suddenly terminated, which can happen in any job for a variety of reasons, they don't have a technical way to seek another H1B job. This is also true for workers in E-1, E-2, E-3, L-1, O-1, and TN classifications.
Then, what to do? Before 2016, the standard advice from attorneys was to depart the country. Any advice short of this could result in a malpractice claim, because staying meant accruing unlawful presence. This is bad. This rule technically left no time to purchase a plane ticket and physically leave the country. If another employer was available to immediately petition for an H1B visa transfer, the application was obligated to present "discretionary factors," and the decision was left to the individual at the USCIS reviewing the application. If submitted within an undefined "reasonable" period of time, it would often turn out OK because the service recognized this legal flaw. There was an unwritten tradition of recognizing practical needs of the business community as well as humanitarian considerations of living in America for years with this very sudden life change. So in many cases USCIS overlooked this technicality with a wink. But nothing was guaranteed.
60-DAY GRACE PERIOD
Enter 2016. Recognizing this issue, USCIS instituted a 60 day grace period for non-immigrant visa holders that allows individuals who lose their job to remain in the United States legally for up to 60 consecutive days or until the end of their authorized validity period, whichever is shorter. During this grace period, the H1B visa holder can find a new employer who files a new petition on their behalf, apply to change their status to another visa category, or simply prepare to leave the United States.
The grace period was introduced to provide a safety net for nonimmigration workers in H1B, E-1, E-2, E-3, L-1, O-1, and TN classifications. It gives them a chance to stay in the country while seeking new employment or making other arrangements, instead of being forced to leave immediately upon termination of their employment or live with the uncertainty of a discretionary argument in a pending application that is subject to the discretion of the individual USCIS officer who reviews the subsequent petition.
WHAT IF THE NONCITIZEN STILL LACKS A JOB?
A new status is not required to be attained within the 60 day grace period. What is required is some sort of action to change the prior status, or filing adjustment of status, or filing an application for compelling circumstances, or to be the beneficiary of petition to change employer. In general, the action for a new status does not need to be completed, but it must be begun by the end of the 60 days. If no action is taken to change status or adjust status, then the individual and their dependents (if any) must depart.
But what if a new job was offered on day 55, and the new employer just hasn't had time to submit the new petition? The general advice here, and please check with an immigration lawyer first before doing this, is to submit a change of status application for visitor or other valid nonimmigraiton visa before the 60 days runs out. Honestly, since you don't know for sure if the H1B will even be approved, change of status to F-1 student is an important option. So when one is laid off, immediately consider acceptance at a school and acquire the required I-20.
HOW IS THE GRACE PERIOD CALCULATED?
Couple clarifications. This grace period is just that, a grace. It is not a law or guarantee, but only a written statement by the executive branch that discretion will be given in certain cirumstances (that you must meet) that the individual will not be considered out of status when they're applying for a new status.
Also, there is no "application" for the grace period. It is a "look back." So the actions taken by the noncitizen during the 60 days will be looked back on by the USCIS to see if they are were compliance with the grace period. The discretion given by grace period itself isn't even applied until a new application is received. At that time, the agency will look back and determine if, for the purposes of this change of status, the person was in valid status by virtue of this grace period.
Further, the grace period is calculated by consecutive calendar days from the last day of work for which one was paid. To calculate days, I often use a free online Day and Date Calculator. Noncitizens should regularly use this tool! NOTE: This is NOT the last day someone receives pay, but the last day of work FOR WHICH one expects to receive pay.
ARE THERE ADDITIONAL CONSIDERATIONS?
Immigration law always has a plethora of considerations depending on the individual circumstance. This is why you see it said over and over to seek the advice of an immigration attorney. Just about every circumstance has some different nuance worthy of double checking with a professional, especially given the stakes involved. But, in general, the noncitizen or subsequent employer has 60 days to submit another application for valid status.
TRACKING ACTIVE OR INACTIVE VISA STATUS
For purposes of the 60-day grace period, one doesn't need to necessarily track H1B status activity, online or otherwise. Although it can be a good idea. I have seen some employers revoke an H1B without notifying the worker that they've been terminated. But that's another issue. Valid legal immigration status depends on compliance with the requirements fo that status. If compliance with any one of the requirements ends, the status likely ends with it. For the H1B visa, subject to the grace period, once one stops working or are otherwise out of compliance with H1B requirements, that status always ends.
As mentioned, an employer can technically revoke the H1B visa with the USCIS as well, and that can sometimes be tracked online at the USCIS website. I say sometimes because the online status reflected at the USCIS website is notoriously inaccurate.
But for H1B employment that ends with resignation or termination, that is irrelevant going forward. Since an H1B visa holder has (probably) already gone through the lottery and is no longer subject to the annual for six years from the start of their visa, a new employer can always transfer them over (again subject to the grace period).
SHOULD ONE GO WITH ANOTHER IT CONSULTANT?
An "IT consultancy" is a staffing company for IT workers. They are familiar with the rigamarole required to acquire an H1B visa on behalf of an employee and are generally adept at this process, esepcially if they use an immigration attorney. They then subcontract with larger companies to supply the IT workers for various projects and specified periods of time, or are least sukpposed to. Sometimes they subcontract with another subcontractor to do the same. I say "supposed to" because, although rules have been promulgated to prevent skirting the rules of the system, some IT consultancies have made a bad name for the rest of the industry. Some of bad actors are not just small operators either. Other consultancies do very good and honest work, helping large employers avoid the complexities of America's immigration system to allow concentration on their own core competencies. I wonder if our employment-based immigration system would run smoother and more justly if these large and powerful companies knew what it actually took to find a person to mainatin their computer systems. To the question above, though, I have no advice either way. Etvery petitioning employer must comply with all legal requirements regardless of whether they are a direct employer or subcontractor, small or large.
ARE THERE RISKS OF TRANSFERRING H1B VISAS MULTIPLE TIMES?
While there is not legal limitation on the number of times an H1B may be transferred to another employer, one should think about why it might be happening frequrently for some individuals. The government may question whether someone is associated with legitimate companies by change employers so often. But, in general there is no prohibition on multiple H1B transfers from one legally compliant H1B visa to another, both in terms of the employer and employee.
Now, there are some complications and limitations on ways the grace period is used. Here are a few quick pointers:
• The grace period applies only once during each authorized employer petition validity period.
• It only applies to the visas listed above. There is no 60 day grace period for visitor visas, for example.
• The grace period ends if you depart the U.S.
• You cannot work during the grace period.
• Your employer can rehire you for the exact same job and pay during the 60-day grace prod without any needed filings or action. If the position or salary changes for the rehire, an H1B amendment may need to be filed. If there was an actual visa revocation, a new applicasiton will be needed.
• There is no grace period if you're outside the U.S. when terminated.
• Your spouse's EAD (if they have one) doesn't expire during the grace period, but ends at the end of it.
• OPT. The grace period only applies to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents). Termination during OPT is subject to its own rules, so refer separately to the USCIS website or attorney for that info.
Finally, and I mean to educate, not complain. I truly appreciate all calls I receive. But lately I've received some calls from people who have already been offered a job and will be sponsored for an H1B, AND that company has an attorney that will be processing the petition. Nonetheless, the individual is contacting me for advice regarding their particular process that would take time to advise properly. To clarify, an attorney for H1B visas is a dual representation arrangement. This means the attorney has a legal duty to both the company and the foreign national. The noncitizen therefore has a right to questions answered by the attorney retained for the H1B petition. So, if an attorney is involved please call them not me! If you really do need a second opinion, a consultation fee will likely be needed.
Also--and this references the IT consultant discussion--let me make it 100% clear that the employer cannot charge--or charge back--or seek renumeration in any way whatsoever--for the filing of an H1B visa. This applies to ALL costs whether application fees, attorney fees, "training," resignation penalties or other costs. This is a hard and fast rule and there is no ambiguity or exception. And yet I still hear noncitizens being charged directly for their H1B process or even being charged to be hired! Even liquidated damages have limits and are often misused. An employer cannot require the employee to terms of a contract that are against the law.
PRO TIP: Communicate in writing with your employer and employees. There is a culture, particularly among Indians (but not exclusively) to talk on the phone for everything and not even leaving a voicemail. There is something more official somehow about this approach. Maybe someone can explain it to me. Calling is fine, but having things in writing, especially terms of employment, should be in writing.
Anyway, someone mentioned that my replies to these queries were super helpful so I thought I would publish them to the broader public. Would really appreciate your feedback!
This is really helpful. Thanks for sharing and educating.
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