Throughout my years of practicing immigration law, one of the most common client questions has been “Is there an H-1B grace period?” and “Is there a grace period if I am laid off while on H-1B?” For all these years, I have had to respond that sadly there is no such thing. However, that has changed recently! As of January 2017, there is a new regulation (8 CFR §214.1(l)(2)), which provides for a 60 day grace period for foreign nationals in H-1B, E-1, E-2, E-3, H-1B1, L-1, O-1, and TN status. The regulation also applies to the dependents of foreign nationals holding one of these classifications.

The regulation states that a foreign national holding H-1B status (or one of the other classifications listed above) will not be considered to have failed to maintain nonimmigrant status based solely on his/her termination of employment, for up to 60 days or until the end of the authorized validity period, whichever is shorter.

What does this mean?

1. First, keep in mind that the “grace period” is up to 60 days, or the end of the current period of stay, whichever is shorter. So if the foreign national’s I-94 will expire in 40 days, that is the maximum duration of the grace period, not the full 60 days (the 40 days plus an additional 20 days).
2. During the grace period, the foreign national may change employers, file a change of status to another classification, or prepare to leave the US. The foreign national is not authorized to work during the grace period.
3. The grace period can be used one time per validity period.
4. This benefit is at the discretion of USCIS – they can deny or shorten the grace period on a case-by-case basis.

While this H-1B (or other nonimmigrant visa classification) grace period is not guaranteed, it does provide at least the possibility of more flexibility for H-1B holders who need or want to change jobs, and may have a temporary gap in employment. This is a welcome change indeed!

Do you need assistance with a family-based or employment-based immigration matter? Are your looking for an immigration lawyer? Please contact our Richmond, VA-based office at 804-396-3412 or at info@sumnerimmigration.com to learn how we can assist. We look forward to hearing from you!