Tag Archive for: Maintenance of Status

Extending Visitor Visa Status During Covid-19 and after the Birth Tourism Rule

Visitors who have been admitted in B-2 visa status may extend their status while in the United States. Even if a visitor has a multiple entry visa in the passport for a duration of ten years, the visitor is admitted into the US for a more limited time at a port of entry, which is generally a period of six months in B-2 status.

Since the COVID-19 pandemic, many visitors have sought to extend their status as flights are not yet plying to their home country or they may wish to avoid flying out of fear of contracting the infection. Some countries have put restrictions on travelers from the US. A request to extend B-2 status may be made by filing Form I-539 pursuant to 8 CFR 214.1(c)(1) either electronically or through a paper-based application. Although this blog’s focus is on filing an extension for B-2 status, it is also possible to change from another nonimmigrant status to B-2 status pursuant to 8 CFR 248.1. Many nonimmigrants in H-1B or L status who have lost their jobs due to the economic downturn caused by Covid-19 have had to resort to changing to B-2 status due to non-availability of flights to their home country. Note that one who was admitted under the Visa Waiver as a visitor for 90 days is not eligible for filing for an extension of status, although a Visa Waiver entrant may apply for a 30 day extension directly wither with USCIS or CBP called Satisfactory Departure.

In order to be eligible to request an extension of B-2 status or a change to B-2 status, it is important for the applicant to have maintained her current nonimmigrant status. If the visitor has engaged in unauthorized employment, he will be ineligible to request an extension of status. Although the extension or change of status request must be filed timely, the USCIS has authority to exercise its discretion in excusing an untimely filing based on extraordinary circumstances beyond the control of the applicant. The applicant must also demonstrate that she has not otherwise violated nonimmigrant status, continues to remain a bona fide nonimmigrant and is not the subject of removal proceedings. The USCIS has indicated that it will consider late filings caused as a result of Covid-19. See 8 CFR 214.1(c)(4) for authority for excusing untimely filings for extensions of status and 8 CFR 248(b) for excusing untimely filings for change of status.

There are very harsh consequences if the applicant overstays the terms of his stay in the US. Overstaying one’s visa results in the automatic voidance of the multiple entry visa on the passport under INA 222(g). Overstaying beyond the expiration of the nonimmigrant status, governed by the I-94, for more than 180 days results in a 3-year bar against re-entry under INA 212(a)(9)(B)(i)(I). Furthermore, overstaying the visa for more than one-year results in a 10-year bar against re-entry under INA 212(a)(9)(B)(i)(II). Therefore, ensuring that the I-539 is timely submitted (of if not timely submitted, it is at least excused by USCIS) will toll the accrual of unlawful presence, and thus avoid the triggering of automatic voidance of the visa stamp or the accrual of unlawful presence that will result in the 3- or 10-year bars to reentry into the United States.

At the time of submission, Form I-539 must be accompanied by evidence that the reason for the extension is consistent with the purpose of the visitor visa, and the visitor continues to maintain a residence in the home country as well as ties with that country. It is also strongly recommended that a sworn statement is included that clearly indicates the need for the extension and the change of intention since the initial admission to stay longer, along with an I-94 printout and other evidence of financial sufficiency and support. A Form I-134, Affidavit of Support, may also be submitted to bolster the evidence of financial support. The new public charge rule took effect on February 24, 2020 and applies to extension and change of status requests. The USCIS will consider whether an applicant seeking an extension of stay or change of status has received, since obtaining the nonimmigrant status she seeks to extend or from which he or she seeks to change, public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, the receipt of two benefits in one month counts as two months.  Among the prohibited benefits is federally funded Medicaid, although Medicaid funding for an emergency medical condition will not be considered, which includes emergency labor and delivery. Noncitizens regardless of status are eligible to receive Medicaid for an emergency medical condition. See 42 CFR 440.255A. Form I-539 has new sections that require applicants to check off whether they have accepted prohibited benefits.

Notwithstanding the Medicaid exception for emergency medical conditions, including pregnancy and birth, applicants have to be very careful regarding applying for extensions based on health reasons, especially relating to pregnancy and birth. The Trump administration has amended the definition of visitor for pleasure at 22 CFR 41.31(b)(2) to prohibit so called birth tourism. The original version of this rule, before it was amended on January 24, 2020, defined “pleasure” as stated in INA 101(a)(15(B) “to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Now 22 CFR 41.31(b)(2)(i) includes the old definition for pleasure but adds that the term “pleasure” does not include obtaining a visa for the primary purpose of obtaining US citizenship for a child by giving birth in the United States. The new rule at 22 CFR 41.31(b)(2) is reproduced in verbatim below:

(i) The term pleasure, as used in INA 101(a)(15)(B) for the purpose of visa issuance, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature, and does not include obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

(ii) Any visa applicant who seeks medical treatment in the United States under this provision shall be denied a visa under INA section 214(b) if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, that a medical practitioner or facility in the United States has agreed to provide treatment, and that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant also shall be denied a visa under INA section 214(b) if unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.

iii) Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.

President Trump has always intended to abolish birthright citizenship even though it is protected under the Fourteenth Amendment of the US Constitution. Knowing fully well that the abolition of birthright citizenship would require a constitutional amendment, the Trump administration quietly amended the State Department regulation as a step towards discouraging pregnant women from entering the US to give birth to children who then automatically become US citizens. While birthright citizenship has advantages, and abolishing it will be a bureaucratic nightmare as it may be applied retroactively (see Why Birthright Citizenship is so Wonderful for America), visa applicants now have to confront needless scrutiny while applying for a tourist visa. A pregnant person may be denied a visa even if the primary goal is not to give birth to a child in the US for the purpose of conferring US citizenship. The applicant may wish to seek the best medical care for a potentially complicated pregnancy, or may be more comfortable with a doctor and hospital facility in the US than in her own country. An applicant may be travelling purely for business or a holiday and intending to return to her home country to give birth, and could still be denied the visa. Even if the applicant wishes to seek a visa for pursuing medical treatment, even if it is not associated with pregnancy and birth, the rule now requires a demonstration that the applicant will be able to pay for the costs of the medical treatment, and has the ability to pay for them through lawful sources.

Although 22 CFR 41.31(b)(2) applies to a visa issuance at a US Consulate, the USCIS would also likely refer to it when applying for an extension of status even though an applicant previously was issued the B-2 visa at the US consulate. The USCIS routinely issues a Request for Evidence (RFE) asking for further evidence of ties with the home country and financial sufficiency after a request for an extension if filed. An extension request based on medical reasons will result in more scrutiny as a result of 22 CFR 41.31(b)(2). This author has seen RFEs asking for a detailed letter from the applicant’s physician regarding the medical condition, the prescribed treatment and its duration, the physician’s opinion on the applicant’s ability to travel, and the availability of similar treatment in the applicant’s home country. The RFE may also ask for the stated reason for the trip when applying for the B-2 visa at the US Consulate. If the applicant was already suffering from symptoms of the medical condition, the RFE may question whether this was disclosed to the Consular Officer, and if not, an explanation for why the applicant did not disclose the possibility of her seeking treatment in the US. The RFE may also demand extensive proof of financial ability of the applicant to pay the medical bills. Finally, the RFE will also ask for proof of foreign residence when the applicant departs the US.

The timely filing of the I-539 application tolls the accrual of unlawful presence for purposes of the 3- and 10-year bars to reentry into the US if the applicant stays beyond the expiration of the validity date on the I-94. If the I-539 remains pending beyond the requested date, as the request can be made for up to 6 months, another I-539 application must be filed before the date the first extension if granted would have expired even if there has been no decision on the first I-539. The applicant may, however, depart the US during the pendency of the I-539 application. If the application is denied, there is no right of appeal, although the applicant may request a motion to reopen or reconsider. Requesting a reopening or reconsideration will not toll unlawful presence for purposes of the 3- and 10-year bars. If the extension is granted, it is imperative that the applicant depart the US timely prior to the expiration of the extended date. While there is no limit in seeking additional extensions, the USCIS will take issue with immigrant intent.

Finally, even if all goes well and the applicant timely departs the US, the Consular Officer could still question why the applicant sought an extension at the time of next applying for a renewal of the B-2 visa at the US Consulate. Given all the risks and pitfalls, one should avoid seeking an extension or change of status to B-2 unless it is truly necessary and made in good faith.

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

 

 

 

 

 

 

USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training

An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend that we first mentioned in an earlier blog where we indicated that USCIS had started challenging F-1 maintenance of status through CPT by issuing Requests for Evidence on pending H-1B petitions requesting a change of status in the US.

Essentially, 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however,  “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002. [revised 10/25/2018] This could clearly be interpreted to mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any practical training after graduation. This appears to have been the prevailing interpretation by all government agencies and CPT has continued to be routinely granted by Designated Student Officers (DSO) through the Student and Exchange Visitor Information System (SEVIS) that is administered by Immigration and Customs Enforcement (ICE). Enter the new USCIS in the era of Trump. Suddenly, USCIS has begun to interpret the regulations to mean that a student may only be granted a total of 12 months of any type of practical training. This, despite the fact that ICE, its sister agency, authorized more than 12 months of CPT. USCIS is choosing to completely disregard the unmistakable indication in 8 CFR § 214.2(f)(10)(i) that students may legitimately receive “one year or more” of CPT.

It is painfully obvious that the intent behind the regulation was only to prohibit students who had received more than 12 months of CPT from then also receiving Optional Practical Training (OPT) after graduation. The intent was not to penalize a student for receiving more than 12 months of CPT. First, the student could not receive more than 12 months of CPT if the CPT weren’t actually granted by a school DSO and entered into SEVIS. Accordingly, if there were any violation, it should be on the part of the school and not the student. The student should not be punished for failure to maintain status when that student followed all the appropriate steps to maintain status. Second, why is USCIS making a determination that such a student failed to maintain status when ICE is the agency that administers the Student and Exchange Visitor Program (SEVP)? If ICE has not determined that a student failed to maintain status and if SEVIS indicates that the student is currently in status, then USCIS ought to acknowledge that. If there had truly been a violation of status then SEVIS would have so indicated.  And third, the regulations at 8 CFR § 214.2(f)(10) are simply outdated. In March 2016, the Department of Homeland Security (DHS) amended its F-1 student visa regulations on OPT for certain students with degrees in science, technology, engineering, or mathematics (STEM) from SEVP-certified and accredited U.S. colleges and universities. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). See 8 CFR § 214.2(f)(10)(ii)(C). Perhaps DHS could have also amended the regulations and removed all outdated sentences. Unfortunately, USCIS is now seizing upon such a sentence and using it to launch another attack on F-1 students.

In the case of the H-1B petition, USCIS can approve the underlying H-1B but deny the request for a change of status. In order to obtain H-1B status, the student would need to leave the US and apply for an H-1B visa at a US Consulate or Embassy abroad. At this point in time, upon receipt of a USCIS denial of a request for a change of status on an H-1B petition, the F-1 student would only have accrued unlawful presence from August 9, 2018 under USCIS’ unlawful presence policy for F, J and M nonimmigrants. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Very few students will trigger the permanent bar as they generally do not try to reenter the US without being admitted or paroled.   Students in receipt of a denial of a change of status can take advantage of the current grace period until February 5, 2019. However, if the student departs the US later than February 5, 2019, he or she will be barred from re-entering for 3 or 10 years.

So what can be done? More so than ever before, F-1 students really need to be proactive about their maintenance of status and need to seek legal advice in the event that any rules are unclear or even just to ensure that they are on the right track. It will not be enough to rely on the DSO’s advice as the student will be the one punished in the end. But the bottom line is that this USCIS policy must be challenged in federal court! It is simply unconscionable to inflict the 3 and 10 year bars on a student who has diligently sought to maintain status in the US.

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)