Grace period for non-immigrant workers

ON November 17, 2016, the U.S. Department of Homeland Security issued its final regulations entitled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Non-immigrant Workers.   This rule which took effect on January 17, 2017 provides two grace periods to certain nonimmigrant visa holders.

The rule provides a 10-day grace period at the start and end date of the validity period for E-1, E-2, E-3, H-1B, L-1 and TN non-immigrant workers.  Thus, a nonimmigrant worker under any of aforementioned categories will be allowed entry into the United States under their category at least 10 days before the start date of their validity period and will be allowed to stay here for 10 days after the expiration of the validity period without incurring a period of unlawful presence.  Other nonimmigrant workers in the H-2B, H-3, O and P categories already enjoy a 10-day grace period under existing regulations.

The rule also provides a 60-day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN non-immigrant workers a grace period of 60 days upon the ending of their employment.  Prior to the effectivity of this rule, whenever nonimmigrant workers are terminated, they were immediately considered to have lost their non-immigrant status.  There was also no grace period for them to depart the United States.  Thus, if a worker got terminated on a Monday, and was not able to book a flight home till Wednesday, then this worker would have been considered to have violated his non-immigrant status.  The 60-day grace period now gives the affected worker more time to prepare and leave the country upon the cessation of their employment, and even gives them an opportunity to transfer to another employer or to change his or her status during this 60-day grace period.

The 60-day grace period kicks in automatically upon the cessation of employment and there is no specific application or form that needs to be filed with the USCIS to avail of the grace period.  The new grace period is a welcome development as it gives relief to the harsh consequences of work termination for these non-immigrant workers.

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Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV), a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; The CTV Attorneys will be at Max’s Restaurant in Vallejo on October 19, 2009 from 5pm to 7pm to hold a FREE legal clinic.


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