The Myth of the Ten-Day H1B Grace Period05 Aug 2011
Anyone who has dealt with immigration issues in connection with the H1B petition and status has likely heard references to a ten-day “grace period” afforded to H1B nonimmigrants at the conclusion of the authorized period of stay. There is no automatic ten-day grace period in the H1B category, however. The limited circumstances in which an individual in H1B status might actually be granted the ten days of a grace period are explained here for the benefit of MurthyDotCom and MurthyBulletin readers.
Background: No Automatic Grace Period on H1B Approval Notice
H1B petition approvals have stated validity dates. These dates generally match the dates requested by the employer when filing the H1B petition. (H1B petitions can be granted for a shorter period than requested by the employer, but the validity is always supposed to fall within the date range requested by the employer.) If the H1B petition is approved with a change or extension of nonimmigrant status, the H1B approval notice will also contain an I-94 card at the bottom of the notice. This will have the same validity period dates as the H1B petition approval. The I-94 card determines the foreign national’s status and authorized period of stay in the United States. The authorized H1B stay ends at the expiration of the I-94, not ten days beyond that date.
Port of Entry Can Grant 10-Days Additional Time
There is a basis for the 10-day grace period concept. There are circumstances in which an H1B nonimmigrant may be granted an I-94 card with an additional 10-day period to remain in the United States lawfully and prepare for departure from the country after completion of the H1B work or assignment. The confusion stems from a provision within the H1B regulations that addresses the authorized admission period for H1B nonimmigrants. This provision states:
“A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.”
This regulation essentially sets forth that an H1B visa holder applying for admission at a U.S. port of entry (POE) should be admitted up to ten days before the start date of his/her H1B petition, and should be granted an I-94 card extending ten days beyond the end date of the H1B petition.
Not Automatically Granted Ten Extra Days at POE
While the U.S. Customs and Border Protection (CBP) officer has the authority to grant the extra ten-day period of admission for H1B nonimmigrants at the POE, it is important to note that this ten-day period is not automatic even at the POE. The CBP officer must specifically grant the additional ten days at the POE when the H1B worker is admitted to the United States. This additional time is then reflected on the I-94 card issued at the POE and often stapled in the passport of the H1B worker.
H1B Worker Must Depart by or Before Expiration Date on I-94 Card
This ten-day-grace provision, allowed by CBP at the POE, does not permit an H1B to arbitrarily add, or presume eligibility for, an additional period of time to the ending validity date on the I-94 card. If the I-94 card ends on the same date as indicated on the H1B approval notice, even if the I-94 was issued at the POE, the end date is the date when permission to remain in the U.S. ends, not ten days later.
This was confirmed in a 2001 letter written by Linda Dodd-Major, previously Acting Director of Legacy INS Office of Business Liaison:
“As for a 10-day ‘grace period’ following termination of employment-based nonimmigrant employment, there is none. Although the H1B alien can extend 10 days before or after the approved period, for the purpose of making personal arrangements in anticipation of or following the approved H1B employment, that “grace period” must be included within the approved stay in the U.S., as indicated on the Form I-94, or it does not exist … [a]n H1B (or any other) alien may not simply tack it onto the expiration date on the I-94.”
Conflict in CBP Port of Entry Procedures for H1Bs
The CBP Field Inspectors Manual directs CBP officers to admit H1B nonimmigrants for a period “up to 10 days after the expiration date.” Thus, the CBP procedures are inconsistent with the regulation. The regulation uses mandatory language, stating that the H1B applicant “shall” be admitted for an additional ten days after the validity period of the petition.
On the other hand, the internal CBP guidelines make the granting of up to ten days an optional, discretionary decision on the part of the CBP officer. Additionally, while the regulation mandates ten days, the CBP manual’s language would allow the CBP officer to grant only a portion of that time.
The actual practice with regard to the additional ten-day period is a bit haphazard. We see H1B holders who have CBP-issued I-94s reflecting the grant of an additional ten days beyond the H1B petition approval date. However, more often, CBP officers issue I-94 cards valid only to the expiration date of the underlying H1B petition. There is nothing preventing an H1B holder from politely requesting that a CBP officer add the additional ten days to the I-94. This is yet another reason that it always a good practice to closely examine the I-94 card when it is issued by a CBP officer.
Reason for Ten-Day Grace Period: To Depart U.S.
It is important to note that this is not additional H1B status. The ten-day period is intended to permit an H1B holder reasonable time to wind up his / her affairs in the United States and to depart the country. The individual is not permitted to work during this period.
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