Sixty-Day Grace Period for Nonimmigrant Workers after Loss of Employment

The U.S. Department of Homeland Security has promulgated a regulation affecting highly skilled foreign workers when they lose their jobs. The stated purpose of the regulation is to improve the ability of U.S. employers to hire and retain highly skilled foreign workers and to increase the ability of those workers to pursue new employment opportunities.

Nonimmigrant workers are individuals who enter the United States for a temporary period of time and are restricted to the activity consistent with their visas (those in E-1, E-3, H1B, H1B1, L-1, O-1 and TN status). Prior to this regulation, a nonimmigrant worker who was laid off or whose employment was terminated would immediately begin to accrue unlawful status. Since the beneficiary of a visa petition must be in valid status at the time of filing, a sudden loss of employment was particularly problematic in terms of transferring the visa to a new employer. While U.S. Citizenship and Immigration Services (USCIS) was somewhat forgiving if a new sponsoring employer was identified quickly, the conventional wisdom was that the USCIS would not approve a transfer petition if the beneficiary was out of work in excess of one month.

The new regulation provides for a 60-day discretionary grace period, during which a nonimmigrant worker does not accrue unlawful status. This allows nonimmigrant workers two months to locate a sponsoring employer to whom the visa may be transferred, to apply for a change of status or to wind up their affairs before departing the United States.

Employment is not authorized during the grace period, but the nonimmigrant worker may begin working with the filing of a transfer petition by a new employer. A worker may use the grace period only once for each validity period. For instance, if a worker loses his job and then uses the grace period to transfer his visa to another employer, he may still be eligible for another 60-day grace period should he lose that job. Unused days in the first grace period cannot be carried over into a subsequent grace period. USCIS has the discretion to deny or shorten a grace period if there are violations of status such as unauthorized employment, fraud or criminal convictions, among others.

The 60-day grace period is a welcome accommodation to nonimmigrant workers who find themselves suddenly laid off or their employment terminated.

© 2017Wilson Elser Moskowitz Edelman & Dicker LLP
Learn more on our Immigration Practice Group page.

Published by

National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.