Proposed DHS Regulation Provides Additional Grace Periods02 Feb 2016
The rule proposed by the U.S. Department of Homeland Security (DHS) on December 30, 2015, entitled Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, includes a number of different provisions. While parts of the proposed rule are disappointing, as explained in the MurthyDotCom NewsBrief I-140 EAD Proposal is Limited and Restrictive, there are a few bright spots that would improve the employment-based immigration system. One positive aspect of the proposal would be the addition of a much-needed grace period that would protect most foreign national workers.
Ten-Day Grace Period Proposed for Admission and Exit for Nonimmigrant Workers
Existing regulations allow an H1B worker to be admitted to the United States up to ten days before the employment start date of the approved petition. Similarly, current regulations allow the granting of an additional ten-day stay beyond the expiration date of the H1B petition. The proposed rule would create an identical 10-day grace period, both pre-start date and post-end date, for individuals seeking admission in the E-1, E-2, E-3, L-1, and TN categories.
Under current procedures, the H1B grace period is not automatic. Rather a U.S. Customs and Border Protection (CBP) officer generally has the discretion to grant it upon admission at an airport or other port of entry (POE). If granted, the grace period is reflected on the I-94 duration given. The same procedure would apply if the ten-day grace period were expanded under the proposed regulation to other nonimmigrant categories.
60-Day Grace Period After Job Loss
Under existing regulations, there is no grace period following a job loss for a great majority of nonimmigrant workers. Thus, in many situations, it is virtually impossible for an individual to maintain status following a layoff. Many are surprised to learn about this lack of a grace period, as it forces status violations on individuals who have taken every reasonable precaution to comply with immigration laws and regulations.
The proposed regulation would create a “one-time grace period” of up to 60 days in case of a job loss. This benefit would be available to individuals in valid E-1, E-2, E-3, H1B, H1B1, L-1, or TN status and their respective dependent family members. If the individual’s employment is terminated, the worker would be granted a grace period of up to 60 days, or through the expiration date of the individual’s authorized validity period (i.e. typically, the I-94 expiration date), whichever is shorter.
During this grace period, the individual would be able to look for new employment or seek a change of status to a different nonimmigrant classification. Of course, s/he could also use the time to make preparations to depart the United States.
Meaning of “One-Time” Unclear
The proposal indicates that this would be a “one-time grace period during an authorized nonimmigrant validity period.” The exact meaning of this being a “one-time” benefit, however, is not clear. This is one of the issues that the Murthy Law Firm will be raising with the DHS in submitting comments regarding the proposed rule.
For the time being, these new grace periods remain purely proposals. However, if the proposed rule is finalized and implemented, the availability of such grace periods for most nonimmigrant workers would be a small, yet important improvement to the U.S. employment-based immigration system. The Murthy Law Firm encourages stakeholders to submit comments regarding the proposed rule by the February 29, 2016 deadline. Subscribe to the free MurthyBulletin or check MurthyDotCom frequently for updates on this proposal and other important topics related to U.S. immigration law.
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