By Brianne Donovan, Sumner Immigration Law Clerk

Unemployment is always concerning, and now the possibility at the forefront of everyone’s mind right now as we face the economic uncertainties of the coronavirus. When faced with an unexpected lay off or furlough it is especially important for foreign workers on nonimmigrant visas to make sure they know what options they have and what steps they need to take to avoid falling out of status.

In early 2017, a new regulation was published that provides for a 60-day grace period for foreign nationals working on specific nonimmigrant visas. The regulation covers those working on H-1B, E-1, E-2, E-3, H-1B1, L-1, O-1, and TN status. If a foreign worker on one of the mentioned categories is terminated, they will not be considered to have failed to maintain nonimmigrant status for up to 60 days or until the end of the authorized validity period, whichever is shorter. However, please note that the grace period can only be used once per validity period.

During the grace period, a foreign national can look for new employment and change employers. They may also use this time to change to another immigration status, or apply for permanent residence (adjustment of status) if they are eligible. However, it is important that the foreign national does not work during this time without an employer filing a new petition.

What if I cannot find new employment during my grace period?

If you are not able to find a new job and have the employer file a transfer/extension petition for you, then you would either need to change status to a different visa classification, as mentioned above, or leave the U.S.. If you do not leave the U.S. during your grace period, you will be out of status. Once you are out of status, USCIS will not approve an extension of your status. That means that if you were to find a new job later, you would likely need to file the petition and request consular processing. This is a complex scenario and you should consult with a qualified immigration attorney to devise a plan.

If you stay in the U.S. beyond the date that your I-94 expires, then you are accruing unlawful presence. If you accrue more than 180 days of unlawful presence and then leave the U.S., there is a three year bar to re-entering the U.S.. If you accrue more than one year of unlawful presence, there is a ten year bar to re-entering the U.S..

If I file the H-1B transfer during the grace period, when can I begin working for the new employer?

If you meet the requirements for H-1B portability you can begin working when the H-1B transfer petition is filed. The H-1B portability requirements are:

• The H-1B worker be lawfully admitted in H-1B status
• The new petition must be “nonfrivolous”
• The new petition must be filed before the expiration of the period of stay authorized by the attorney general, and
• Subsequent to lawful admission, the H-1B worker cannot have worked without authorization

Remember that H-1B portability does not apply to other visa classifications.

Each situation is unique so it is best to speak with a qualified immigration attorney when deciding how best to move forward in order to avoid the possibility of jeopardizing your future options.

We are here to help you navigate the immigration maze with peace of mind and confidence. Contact Sumner Immigration Law to set a consultation to create your strategy today! We are immigration lawyers in Richmond, VA but we serve clients throughout the U.S. and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.