USCIS Discretionary Grant of 10-Day Grace Period on Certain I-94 Approvals

The January 17, 2017 regulation for employment-based applicants includes a provision to allow for up to a 10-day grace period both before and after the work authorization period for certain foreign nationals in E-1, E-2, L-1, or TN status. These grace periods have also long been available for foreign nationals in H1B, O, and P statuses. Since May 2017, the Murthy Law Firm has begun to see some extensions and change-of-status approvals from the U.S. Citizenship and Immigration Services (USCIS) for foreign national workers in the aforementioned categories that include the 10-day grace period at the end of the beneficiary’s status.

When the grace period was available only to those in H1B, O, or P status, the additional ten days were issued only at the port of entry by a U.S. Customs and Border Protection (CBP) officer. The new practice of having the grace period sometimes issued by the USCIS is not entirely unexpected, however, as the final rule modified the applicable regulations “… to clarify that 10-day grace periods may be authorized as a matter of discretion, on a case-by-case basis, to nonimmigrants seeking changes of status or extensions of stay.”

No Clear Basis or Criteria for Discretion in Issuance of Grace Periods

Based on the approved petitions seen by attorneys at the Murthy Law Firm in recent weeks, the USCIS appears to be granting the 10-day grace period sporadically on I-94s granted with some qualifying petition approvals. For some, the grace period is added, while for other similarly situated cases, the additional 10-day grace period is not granted. It appears that no clear policy is being used by the USCIS to determine whether to grant the 10-day grace period.

No Work Authorization During 10-Day Grace Period

During the 10-day grace period, the foreign national may not work, but is permitted to apply to change or extend status. Also, the 10-day grace period is separate and distinct from the 60-day grace period available to qualifying foreign nationals following the cessation of employment. More information on both the 10-day and the 60-day grace periods is available in the MurthyDotCom NewsBrief, Overview of Final Regulation for High Skilled Workers (23.Nov.2016).

Conclusion

The availability of grace periods for qualifying nonimmigrants is an overdue improvement to the U.S. immigration system. Hopefully, the USCIS will set out a clear policy of the circumstances warranting their use of discretion in issuing the 10-day grace period to foreign nationals eligible for this benefit.

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