Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform

On July 19, 2017, the Trump administration increased the H-2B cap from 66,000 to 81,000 by promulgating a final rule. H-2B visas are annually capped at 66,000 under the law. Due to an increase in demand of essential workers to serve landscapers, hotels, restaurants and seafood processors each year, the H-2B cap gets hit earlier each year.

Congress provided for a one time increase in FY 2017 through section 543 of the Consolidated Appropriations Act of 2017, signed by President Trump,  which allows the Department of Homeland Security and the Department of Labor to increase H-2B visas this fiscal year based on a complex formula. As a result, the DHS and DOL increased the H-2B cap by 15,000 on July 19. The long sought for increase is too little and is also too late as the 2017 year will be ending by September 30, 2017. The temporary rule also places an onerous standard. Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request for this fiscal year may file under this one-time increase in the H-2B cap.

A day later, on Thursday, July 20, President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. Contrary to media reports, Trump’s businesses sought these H-2B visas for the next fiscal year quota and not under the temporary additional 15,000 H-2B increase for the remainder of 2017. Still, it is quite a coincidence that his businesses sought additional H-2B visas when his own administration issued a rule temporarily increasing H-2B visas a day earlier

The DOL that will process and approve these applications reports to Trump. Once the DOL has issued labor certifications, H-2B visa petitions will need to be filed with United States Citizenship and Immigration Services of the DHS. The DHS reports to Trump. Once the USCIS approves the H-2B visa petitions, the foreign workers will apply for H-2B visas at US consulates in their home countries. The US consulates, who will say yea or nay, are under the purview of the Department of State, which also reports to Trump.

If Trump’s business files for H-2B visas under the temporary 15,000 H-2B quota for the 2017 year, they will have to demonstrate “irreparable harm (that is permanent and severe financial loss), if [they] cannot employ H-2B nonimmigrant workers in fiscal year 2017.” It remains to be seen whether Trump’s businesses can credibly make such a case. Will Mar-a-Lago, promoted as the “winter White House”, which is frequently used by Trump to conduct business on behalf of the United States, and to also entertain visiting dignitaries, suffer irreparable harm including permanent and severe financial loss if it cannot bring in cooks and housekeepers on H-2B visas? If the DOL approved the case for Mar-a-Lago under this heightened standard, it would be hard to pass the laugh test. The heightened standard may even be ultra vires the statute, and it may be interesting to see Trump consider challenging a rule made by his own administration!

Trump’s businesses clearly rely on the H-2B visa. His administration temporarily increased the H-2B visa by 15,000 (even though Trump’s businesses have not yet applied for visas under this increase). The government agencies that will more likely approve rather than deny H-2B visa applications all report to Trump. The move to file H-2B visa petitions for foreign workers also defies Trump’s America First rhetoric that intends to provide jobs to Americans over foreign workers. Indeed, these H-2B visas were filed in Trump’s much publicized “Made in America” week. Just as in every other case where Trump has retained his businesses while serving as president, here too there is a clear conflict of interest if his businesses utilize the H-2B visa program. The conflict will be even more staggering if Trump’s businesses use one of the 15,000 H-2B visas under the temporary increase.

Looking at the bright side, Trump realizes the need for foreign workers on H-2B visas to run his businesses. Although H-2B visas are essential, they only represent a narrow slice of the pie. If Trump does not want this to appear as a conflict of interest, and he is already being accused of being the most conflicted president in modern history, he should view immigration in the same way that he views the H-2B visa program for his businesses. Just as his businesses benefit from foreign workers, so would other businesses as well as the US economy through an expansion of visas. If his businesses cannot hire foreign cooks and housekeepers, the business will not run as profitably and other American workers cannot be hired to manage the H-2B workers. Therefore, the hiring of foreign H-2B workers can create more jobs for Americans. Foreign workers, rather than replacing domestic workers, compliment them. It is this complementariness between American and foreign workers that keeps businesses ticking and profitable.

There are many businesses that are crying out for higher skilled professional H-1B workers. The H-1B visa program is also annually capped at 65,000, with an additional 20,000 H-1B visas for those who have graduated with advanced degrees from US institutions. There is no flexibility to add another 15,000 H-1B visa numbers as with the H-2B visa program. Only Congress can raise the limit, but Trump can persuade Congress to do so. It makes no sense for our universities to educate and graduate top notch foreign students, who then cannot work in the United States because of an arbitrary H-1B cap. If they are forced to return to other countries, they will compete with the United States instead of contributing to it.  US based global corporations must also be given access to tap into pools of global talent so that they can remain competitive, which in turn will benefit consumers in the United States – and ultimately create more jobs for Americans.

There are also entrepreneurs who would love to start up innovative companies in the United States, but there is no startup visa. Instead, the Trump administration just shelved the entrepreneur parole rule that was promulgated by the prior Obama administration. In a podcast where Professor David Hsu of Wharton and I were the guests, we both wondered why Trump really needed to put this rule on ice. It would have benefitted a small group of entrepreneurs, as the threshold of receiving a $250,000 investment was high, but the upsides to the United States could have been tremendous. If one of these foreign entrepreneurs succeeded and his or her startup became a Google, it would result in a paradigm shift in terms of job creation and benefitting US competitiveness. A lot of immigrants have dreams and they want to start their own business and make it big in the U.S. The rule provided one pathway for immigrants to do so, and by not having it and freezing it, we are being less competitive. America needs to realize that it is not the only game in town. There are other countries that want to compete, and we need to be up there — and we are not, unfortunately, by freezing this rule.

In the podcast, now posted on Knowledge@Wharton, Professor Hsu noted that countries like Canada, France and Argentina have provisions that lower the barriers for immigrant entrepreneurs. Immigrants make up about 12% of the U.S. working population, he added. Among STEM (science, technology, engineering and math) workers, immigrants make up 24% of bachelors and 47% of doctorates, he continued. “So [immigrant entrepreneurs] are punching above their weight in the talent pool for the workforce that we desire in the U.S.,” he said. He pointed to one much-cited statistic: foreign-born entrepreneurs make up about half the founders in the so-called “billion dollar club” of startups that are worth at least a billion dollars each.

President Trump ought to also pay attention to the plight of skilled workers who are caught in the employment-based immigrant visa backlogs, mainly those born in India and China. Eliminating the per country limits or not counting derivative family members would go a long way in alleviating their plight, some of whom are trapped in decades long backlogs. Once they get their green cards, they too will be able to unleash far more dynamism in the US economy.

Finally, even undocumented workers are contributing to the United States. Let’s first start with Dreamers who have received work authorization under the Deferred Action for Childhood Arrivals (DACA) program. I have personally seen my own clients embark on successful professional careers after they received DACA authorization, and thus contribute to their fields and the US economy. At this time, DACA seems to be imperiled. It would be a tragedy if young people with a bright future are deported. Other undocumented workers also aspire to do well for themselves and their families. Deporting DACA recipients could result in a loss of $433.4 billion to our GDP besides being politically unpopular. Trump should lend his support to the bipartisan DREAM Act of 2017. One simple way for the US economy to achieve a 4% growth rate, as President Trump desires, is to take in more immigrants. Adam Ozimek and Mark Zandi at Moody’s Analytics, an independent economics firm, estimated for ProPublica that for every 1 percent increase in U.S. population made of immigrants, GDP rises 1.15 percent. Therefore, a simple way to get to Trump’s 4 percent GDP bump is to take in about 8 million net immigrants per year.

All this might be wishful thinking in the age of Trump, who got an electoral college victory largely because of his rhetoric against immigrants as job stealers and criminals. Trump desires to erect a big wall. He has also imposed a travel ban against countries with mainly Muslim populations. At the same time, Trump has realized the need for the H-2B visa so that his businesses can run more profitably. He obtained the forbidden fruit by raising the H-2B limit from 66,000 to 81,000, which he could do as president of the United States. He also wishes to create more jobs in the United States. What better way to do that is for Trump to realize that more immigration is consistent with his goal for creating more American jobs. Trump changes his mind all the time. At one point, he was against NATO and China, but he is not so today. He should also change his mind about immigrants and immigration, especially now that he has felt the need for H-2B visa workers to benefit his own businesses.

Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply To All Immigration Benefits

Form N-400, Application for Naturalization, asks broadly “Have you EVER committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Another broad question is “Have you EVER been a member of, involved in, or in any way associated with, any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?”  It would be difficult for an applicant to answer this question accurately or remember every instance of membership in his or her life. For instance, does the applicant need to include membership in a school club in 8th grade? Until recently, an inaccurate but immaterial response to these two questions could have resulted in both criminal liability and revocation of naturalization.

On June 22, 2017, in Maslenjak v. United States,  the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship under 18 USC 1425(a). Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

This ruling is significant. It prohibits a government official from revoking a naturalized American’s citizenship based on an insignificant omission or misrepresentation. If the applicant did not indicate that she was a member of her school club to the question on the naturalization application asking about membership in any club at anytime and anywhere in the world, a vindictive prosecutor can no longer use this as a basis to indict her under 18 USC 1425(a), seek a conviction and then revoke her citizenship.

What is even more significant is that the Supreme Court sets a higher standard for demonstrating a connection between the violation and naturalization under 18 USC 1425(a) than the earlier standard of determining materiality under 8 USC 1451(a), the civil revocation statute, and elaborated at length in Kungys v. United States.  At issue in Kungys v. United States was whether the failure to indicate the correct date and place of birth was material to justify the revocation of Kugys’s citizenship under the civil provision. Justice Scalia writing for the majority held that the test of whether Kungys’ concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the former Immigration and Naturalization Service. The formulation in Kungys v. United States has been adopted in the State Department’s Foreign Affairs Manual to determine whether a visa applicant made a material misrepresentation that would render him or her ineligible for fraud or misrepresentation under INA 212(a)(6)(C)(i):

The word “tends” as used in “tended to cut off a line of inquiry” means that the misrepresentation must be of such a nature as to be reasonably expected to foreclose certain information from your knowledge. It does not mean that the misrepresentation must have been successful in foreclosing further investigation by you in order to be deemed material; it means only that the misrepresentation must reasonably have had the capacity of foreclosing further investigation.

See 9 FAM 40.63 N6.3-1

In Maslenjak v. United States, the Supreme Court built on the formulation in Kungys to create a heightened standard for the government to prove that a person committed a crime pursuant to 18 U.S.C. 1425(a), which provides: “knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship.” Justice Kagan developed the following standard:

[T]he Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation [citation omitted]. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit.

As to the second link in the casual chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation “would predictably have disclosed” some legal disqualification (citation omitted).   If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think §1425(a) requires.

Justice Kagan’s opinion went on to state that “[e]ven when the Government can make its two-part showing, however, the defendant may be able to overcome it. §1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”

Justice Gorsuch with whom Justice Thomas joined, issued a concurring opinion stating that there was no need for the Supreme Court to create a new formulation, and that the Court of Appeals could do just that.  “This Court often speaks most wisely when it speaks last, ” according to Justice Gorsuch.  In a separate concurring opinion, Justice Alito suggested that the formulation in Kungys v. United States should apply equally to §1425(a).  According to Justice Alito, “§1425(a) does not require proof that a false statement actually had some effect on the naturalization decision.” But this is pivotal to Justice Kagan’s new formulation. The illegal act must have somehow contributed to obtaining citizenship. Take Justice Kagan’s example of John obtaining a painting illegally. This would connote that John stole the painting from the museum or impersonated the true buyer when the auction house delivered it. But if John did something illegal on his way to buy the painting legally, such as excessively violating the speed limit or purchasing an illegal weapon, those acts did not contribute to obtaining the painting illegally. Justice Alito would see it differently. A runner who holds the world record wants to ensure that she gets the gold medal at the Olympics, and takes a performance enhancing drug. She wins the race and is disqualified. The second-place time is slow and sportswriters speculate that she would have come first anyway even without taking the drug. According to Justice Alito, she cannot argue that her illegal act of taking drugs did not make a difference and was not material to her performance in the race.

Justice Kagan’s logic should have more force over Justice Alito’s. A naturalization applicant who stole bread when he was desperately hungry, but was never arrested and does not answer “Yes” to the question of whether he had ever committed a crime for which he was never arrested, should not have his citizenship revoked. First, determining whether a criminal defendant has committed a crime is based on the applicable law where the alleged conduct occurred and whether a prosecutor was able to prove beyond reasonable doubt that the defendant met all the elements of the offense. If the applicable law provides defenses, such as the doctrine of necessity, then no crime would have occurred. This defense too – that the defendant stole bread to avoid death through starvation – also has to be established within the penal system.  It would not be appropriate for an applicant to judge himself guilty on an immigration form – or for his immigration lawyer to condemn him for theft. Even with respect to making an admission, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.  Justice Kagan’s heightened standard to demonstrate materiality should not just apply to 18 USC §1425(a), but ought to also apply to 8 USC §1451(a) cases as well as cases involving willful misrepresentation under INA §212(a)(6)(C)(i). The following words of Justice Kagan’s in Maslenjak v. United States are prescient:

Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen.  That would give prosecutors nearly limitless leverage – and afford newly naturalized American precious little security.

The need for a uniform heightened standard becomes even more urgent in light of questions in immigration forms becoming increasingly broad and ambiguous.   For example, the latest Form I-485 asks whether an applicant intends to “engage in any activity that would endanger the welfare, safety or security of the United States.”  The next question in Form I-485 asks whether the applicant intends to “engage in any other unlawful activity?”  If the applicant answered “No” to the latter question and was later found to have engaged in an unlawful activity that would have no bearing on either the procurement of the green card or on the naturalization, such as participating in a peaceful protest that resulted in an unlawful road blockage, a vindictive prosecutor could still potentially use this to revoke either permanent residence or citizenship. This would not be a just outcome. A lie told out of embarrassment, fear, a desire for privacy or lack of comprehension of the question asked – which is not relevant to naturalization, the green card or a visa –  should never result in revocation.

Analysis of the 60-Day Grace Period for Nonimmigrant Workers

The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. The rule took effect on January 17, 2017. My prior blog analyzed the key provisions of the rule. This blog examines the provision that authorizes a 60-day grace period for workers whose jobs get terminated while employed in nonimmigrant status.

The rule provides two grace periods to nonimmigrant visa holders. 8 CFR 214.1(l)(1) provides for a 10-day grace period at the start and end of the validity period for E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrant workers [note that H-2B, H-3, O and P nonimmigrants already enjoy 10-day grace periods in existing regulations].  8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Several questions have come up relating to when the 60-day grace period will trigger and how often can it be used. It would be useful to reproduce the provisions authorizing grace periods in their entirety for purposes of analyzing these questions.

§214.1 Requirements for admission, extension, and maintenance of status

(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

The answers to the questions I raise are not definitive as all of them involve a case of first impression, although some are based on the DHS’s responses to comments in the preamble, and USCIS may disagree. I do hope, however, that my attempted responses will be helpful for those who need to claim the grace period in situations that are not so clear cut.

How many times can I use the 60-day grace period?

The rule at 214.1(l)(2) states that you are entitled to the 60-day grace period “once during each authorized validity period.” 214.1(l)(1) defines validity period as a nonimmigrant who “may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.”

It thus appears that you are entitled to the 60-day grace period once during each validity period of the petition. Take for example an individual who has been admitted into the US under an H-1B visa petition with a validity period till December 31, 2017. If she gets terminated from her job with Company A, she will be entitled to the 60-day grace period that allows her to maintain H-1B status despite the cessation of employment. She finds a new job with Company B, which files an H-1B petition and extension of status within this 60-day period, resulting in an H-1B petition that is valid from August 1, 2017 to August 1, 2020. She arguably is now within a new validity period. If she gets terminated again by Company B, she should be able to seek another 60-day grace period.

The following extract from the preamble can aid us in this interpretation:

An individual may benefit from the 60-day grace period multiple times during hir or her total time in the United States; however, this grace period may only apply one time per authorized nonimmigrant validity period.

What if the new validity period filed by new employer Company B ends on the same date as the validity period of the petition filed by Company A?

Let’s now assume that December 31, 2017 is the final sixth year of this individual’s time spent in H-1B status. When the new employer, Company B, files the H-1B petition during the 60-day grace period, she is only entitled to H-1B status until December 31, 2017, which is the same validity period as the prior H-1B petition of Company A. If Company B terminates her, will she be entitled to a new 60-day grace period? The preamble to the final rule provides this guidance: “DHS clarifies that, while the grace period may only be used by an individual once during any single authorized validity period, it may apply to each authorized validity period the individual receives.” Although the end date of Company B’s H-1B petition, December 31, 2017, is the same as Company A’s, this is arguably still a new validity period even though it ends on the same day as the prior validity period. Therefore, she can argue that she is entitled to a new 60-day grace period. A new validity period should not be defined as having a different time frame from the older validity period; rather a new validity period resulted because of an extension request through a different petition. However, it is possible that USCIS may reach a different conclusion.

I got laid off by my employer while in H-1B status because the employer did not have enough business. Within 60 days, the employer got new business and rehired me again. Can I just resume employment with that employer without filing a new extension of status petition or leaving and returning to US again in H-1B status?

The purpose of the rule, especially at 214.1(l)(3), is to allow a worker to change or extend status within the 60-day period or to depart the US. However, if the worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, and the same employer files a new H-1B petition within the 60-day grace period, it could arguably create a new validity period. If the employee is terminated for a second time, it may be possible to argue that he is entitled to a new 60-day grace period.

Can I carry over unused days if I do not use all 60 days of the grace period?

The 60 days must be used consecutively and any unused days may not be used later in the same validity period or carried over into a subsequent validity period.

What if my job gets terminated when there are less than 60 days left of my nonimmigrant status?

The rule clearly states that you are entitled to a grace period of 60 consecutive days or until the end of the authorized validity period, whichever is shorter.

Can I get an additional 10 days grace period beyond the 60-day grace period?

In most cases the answer is “No”. However, there may be an exception where the cessation of employment was within the last 60 days of the validity period, and the worker was provided with a grace period of 10 days upon his last admission to the US. Under this limited case, the DHS will consider the nonimmigrant to have maintained status for 60 days immediately preceding the expiration of the validity period plus an additional 10 days. If the cessation of employment occurred when there were only 30 days left before the end of the validity period, then the individual should conceivably be able to claim a 30-day grace period plus 10 days.

Prior to my validity period ending in L-1A status, the same employer filed an extension of status, which got denied after the end of the prior validity period in L-1A status. Am I entitled to the 60-day grace period?

No. There is no grace period after an approved validity period has ended and when an extension of stay has been denied after that period. The 60-day grace period is intended to apply to individuals whose employment ends prior to the end of their approved validity period.

I ported while in H-1B status from Company A to Company B, and the petition for new employment is denied prior to the expiration of the validity period of the previous petition. Am I entitled to a 60-day grace period?

Yes. In this scenario, and as the preamble to the rule suggests, you will be entitled to a 60-day grace period. However, you will not be entitled to the grace period if the extension request is denied after the expiration of the validity period of the H-1B petition of Company A.

At issue is whether the grace period will be available if the same Company B files the H-1B again or must a new Company C file the new employer and extension petition? Since the grace period is applicable to the worker upon cessation of employment, it should not matter whether Company B or Company C files the new H-1B extension. However, readers should be forewarned that the USCIS still has discretion in determining whether the 60-day grace period is applicable or not. If Company B’s petition was denied for egregious reasons relating to fraud, the USCIS may likely not exercise its discretion favorably with respect to honoring the grace period.

Does it matter whether the employer terminates me or I leave the employer in order to be entitled to the 60-day grace period?

214.1(l)(2) states that the 60-day grace period triggers “on the basis of a cessation of the employment on which the alien’s classification was based.” Therefore, arguably it should not matter whether the termination occurred on the employer’s or the employee’s initiative. Again, the USCIS has discretion to decide whether a grace period will be applicable on a case by case basis.

Can I work during either the 60-day or 10-day grace period?

No. Because the rule was meant to facilitate the ability of nonimmigrants to transition to new employment, seek a change of status or depart the US, the rule clearly prohibits any form of employment.

The preamble to the rule even suggests that a nonimmigrant worker may not use the 60-day or 10-day period to work to start their own businesses too. However, if the activities for starting a business do not constitute work, especially if they would be permissible “non-work” activities under the B-1 visa, then one could argue that the person did not engage in prohibited activity during the grace period. However, this is risky given that the preamble has not made any distinction between work and non-work activities relating to the startup of a business.

Can I travel during either the 60-day or 10-day grace period in case of an emergency?

Although the rule is silent about travel, it is strongly advised that the nonimmigrant worker not travel during any of the grace periods. When the individual returns from the trip abroad, he or she will not be coming to join an employer and CBP will most likely not admit her. One of the purposes of the grace period is to facilitate departure from the US, and so it will be going against the intent of the rule if the individual departs and then tried to seek admission again. In the F-1 context, which provides a 60-day grace period to prepare for departure, see 8 CFR 214.2(f)(5)(iv), travelling back to the US is clearly not contemplated during this period.

Can I port to a new employer who files an H-1B petition during the 60-day grace period after my job was terminated by the old employer?

Yes. You are still considered to be maintain H-1B status during the grace period. If a new employer files the H-1B petition, you can exercise portability pursuant to INA 214(n) by commencing employment for the second employer after the H-1B petition has been filed with USCIS.

Can I request employment authorization in compelling circumstances while within the grace period?

Yes. The rule at 204.5(p) clearly states that the principal beneficiary of an approved petition when the priority date is not current can request a work authorization under compelling circumstances if the individual is in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status, “including the periods authorized by 214.1(l)(1) and (2)…..”

If I am unable to find a new job within the 60-day grace period, and find one after 60 days, and the new employer files the H-1B petition 80 days after the cessation of employment with my first employer, am I still eligible for an extension of H-1B status with the new employer?

The USCIS always has discretion to accept late filings based on extraordinary circumstances pursuant to 8 CFR 214.1(c)(4).

Can the USCIS give me less than 60 or 10 days of the grace period?

As noted, the USCIS can always exercise its discretion and will determine whether the facts and circumstances warrant shortening a grace period on a case by case basis. The following extract from the preamble is worth noting:

At the time a petitioner files a nonimmigrant visa petition requesting an extension of stay or change of status, DHS will determine whether facts and circumstances may warrant shortening or refusing the 60- day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60 days following cessation of employment and grant a discretionary extension of stay or a change of status to another nonimmigrant classification. See 8 CFR 214.1(c)(4) and 248.1(b). Such adjudications require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary’s activities after such cessation. While many cases might result in grants of 60-day grace periods, some cases may present factors that do not support the favorable exercise of this discretion. Circumstances that may lead DHS to make a discretionary determination to shorten or entirely refuse the 60-day grace period may include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, among other reasons.

The same logic would apply to the USCIS’s ability to exercise discretion with respect to the 10-day grace period.

How do I apply for the 60-day grace period?

There is no specific application or form. The USCIS will make an after the fact determination when you apply for an extension of status or change of status upon the cessation of employment. It is advisable to explain that you are using the grace period in a letter or affidavit.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice)