Grace Period Improvements to certain Work Visas

Schedule Your Consultation

Homeland Security Improves Grace Period For Certain Work Visas

On November 18, 2016, the Department of Homeland Security (“DHS”) published a final rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. The stated purpose of the regulation, effective January 17, 2017, is to improve the ability of U.S. employers to hire and retain high-skilled foreign workers and to increase the flexibility available to such workers to pursue new employment opportunities.

The purpose of this blog post is to highlight two components of the new rule we believe to be particularly laudable: expansion of the “10-day grace period” already available to those in certain nonimmigrant statuses; and the introduction of 60 day grace-period available to individuals who have been laid off prior to the end of their existing petition validity period.

Many of the changes within the rule are aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.

To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in the H-1B, O-1 and P classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.

Under the previous scheme, whenever a worker in a certain nonimmigrant status was terminated, they were immediately rendered to be in violation of status. Although widely believed to be the case, the same 10-day grace-period available to those in the H, O, and P statuses was never officially recognized for those in the E status, for example.

The updated rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, meant to provide nonimmigrants in the above classifications a reasonable amount of time to enter the US so they can get their bearings and prepare to start their job. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, aimed at providing such nonimmigrants time to depart the United States or take action to extend, change, or otherwise maintain lawful status.

Furthermore, the new rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period provides high-skilled workers in these classifications, including those who have been laid off prior to the end of the petition validity period, with some time and breathing room to pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer.