Department of Homeland Security regulations were modified on January 17, 2017 to incorporate a new grace period to enhance job portability for individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status. This was part of the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers regulation that was completed under President Obama.
This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
The 60-day grace period is intended to provide needed flexibility to qualifying nonimmigrants that face termination of employment prior to the end of their petition validity periods. For example, the grace period may allow the worker to remain in the United States without violating status and potentially obtain new job offers. In this situation, even though prior employment may have terminated several weeks prior to the filing of the a petition, DHS may consider the worker to have maintained status and allow the worker to extend status with a new employer. If the new employer’s petition is granted, the individual may be eligible for an additional grace period of up to 60 days in connection with the new authorized validity period.
An individual may benefit from the 60-day grace period multiple times during his or her total time in the United States; however, this grace period may only apply one time per authorized nonimmigrant validity period. Also note that the 60-day grace period must be used in a single period of consecutive days during the relevant authorized validity period, and the time can be reduced to less than 60 days where the existing validity period is shorter or the circumstances warrant a shorter period. Unused days may not be used later in the same authorized validity period or carried over into a subsequent validity period. Also, be aware that the individual may not work during the grace period or use the grace period to start a business.
As you can see from the use of the term “may” throughout the above explanation, this grace period is NOT automatic. Here is how it works:
At the time the new employer 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. DHS will complete an individualized assessment that considers 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.
Although it is helpful to have this grace period authorized by the regulations, it is basically just a written version of how USCIS already handled these types of “nunc pro tunc” extension requests.
The big takeaway here is that the 60-day grace period is not automatic, it is still up to the discretion of the officer deciding whether to approve the new petition. The new employer will need to provide credible evidence supporting the reason for needing to use the grace period in its petition filed after employment was terminated. I’ve had quite a few people ask about quitting their job and using the 60 day grace period to find a new one. Unfortunately, I can’t recommend doing so in most situations. It is still a better idea to secure the new offer and have a transfer filed before you quit. The regulation may not apply to a situation where the employee voluntarily quits as opposed to being terminated.