“But I read it on the Internet!” – The Myth of the Grace Period14 Dec 2015
Immigration law is highly complex, often considered on the level of federal securities law or tax law in its intricacy and complexity. Misunderstandings are common and, frequently, get mixed in with helpful tips exchanged online and elsewhere. A common misconception is a mythical grace period allowing individuals to remain in the United States after the denial of a petition or application. The fact is that, in most cases, there is no such legal grace period.
Grace Periods in Immigration Context
Grace periods in an immigration context are a continuation of valid nonimmigrant status. Most often, the term is properly used to refer to the continuation of F-1 student or J-1 exchange visitor status after the completion of the particular F-1 or J-1 program. Individuals who are present in a proper grace period are considered to be in a lawful nonimmigrant status.
Grace Periods for F-1 Students and J-1 Exchange Visitors
With regard to a student, a period of 60 days of valid F-1 status is added upon the completion of the program of study or post-completion practical training. During this grace period, a student may change status, transfer to a different program, or prepare for departure from the United States. J-1 exchange visitors generally have 30 days of grace period following the completion of their respective programs.
No Grace Period After Most Petition or Application Denials
Most other nonimmigrant categories do not have grace periods at the completion of the approved period of admission. When such periods exist, they tend to be limited, such as the ten (10) days beyond the petition expiration date for H1B holders. Even this brief extra time is not automatic and can only be granted at the port of entry (POE) upon admission to the United States. There is no grace period that takes effect following denial of most requests to change, extend, or adjust status.
No Grace Period After Layoff
In most situations, a nonimmigrant worker (e.g., H1B, L-1) who is terminated or laid off typically falls out of status immediately following the last day of work. However, if a petition to change to a new employer or application / petition to change status is filed prior to falling out of status, the individual normally would remain in a period of authorized stay while the case is pending.
Difference Between Out of Status and Unlawful Presence
If an individual’s nonimmigrant status has lapsed or is otherwise no longer valid, the denial of an application or petition for an immigration benefit generally results in the presence being deemed in violation of status. A foreign national in this situation may also be accruing “unlawful presence” (ULP), as explained in the MurthyDotCom NewsBrief, Differences Between: Lawful Status, Period of Authorized Stay, and Unlawful Presence (03.Jun.2013).
If an individual accrues more than 180 days of ULP, upon departing the United States, an automatic 3-year bar to reentry will be triggered. A ten-year bar applies to those who accrue more than one year of ULP before departure. Accordingly, it is important to understand there is no grace period to buffer the impact of most denials; the effect is immediate.
When ULP May Start to Accrue
Whether or not an individual begins accruing unlawful presence immediately following a denial depends upon the facts of the particular case. This nuanced topic should be discussed with a qualified immigration attorney. However, if a foreign national relies upon a pending application or petition for continued permission to remain or work in the United States, the denial usually means an immediate end to this benefit.
Vinod has a valid H1B petition that expires on January 1, 2016. On December 1, 2015, Vinod’s employer files an H1B petition requesting an extension of his status. Vinod’s H1B status lapses on January 1, 2016. He remains lawfully present after January 1, 2016 based upon the timely-filed H1B extension request. He has work authorization for up to 240 days based upon the pending H1B petition. However, if the H1B petition is denied on March 1, 2016, Vinod will be out of status as of the date of denial. March 2, 2016 will be his first day of unlawful presence. There is no grace period.
Examples of denials of applications or petitions (and the forms on which they are filed) that may result in this outcome are applications for change or extension of nonimmigrant status (form I-539), petitions requesting an extension or change to H1B status (form I-129), F-1 student applications for optional practical training (OPT) (form I-765), and applications for adjustment of status (form I-485).
Appeals and Motions Do Not Create Grace Period
There is generally a 30-day period given to challenge a denial either by motion and/or appeal. However, this appeal / motion deadline period is not a grace period during which the individual is considered to be legally in status in the U.S. Individuals who are out of status are subject to removal (formerly, deportation). This removability applies whether or not the individual also fits within the more limited category of unlawful presence. The government may delay enforcement action as a matter of discretionary policy and practicality. This discretion allows individuals a brief time to challenge denials and/or prepare to leave the country. But, a common-sense delay in generating an enforcement action is not a status grace period.
Moreover, simply filing an appeal or a motion to reopen / reconsider does not grant any lawful status, nor does it normally stop the accrual of unlawful presence. The consequences of the denial are unchanged, unless the motion or appeal is successful in overturning the denial.
Navigating immigration law requires a thorough knowledge of its many intricacies. Relying on a misunderstanding about an imaginary grace period can bring devastating results. While a grace period in such situations would certainly be a good idea, unfortunately, it does not exist in the law in most cases. The harshness of immigration consequences for failure to maintain status or accruing ULP often depends upon how quickly the mistake is identified. Thus, whenever problems arise, it is important to consult with a knowledgeable immigration attorney as quickly as possible. Attorneys at the Murthy Law Firm are well versed in this area of the law, and stand ready to provide guidance, should you wish to schedule a consultation.
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