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How they can remain in US beyond the 60 day grace period

USCIS Unveils New H-1b Visa Guidelines for Laid-Off Nonimmigrant Workers

The United States Citizenship and Immigration Services (USCIS) has recently issued comprehensive guidance to address the concerns of nonimmigrant workers facing job termination. This initiative aims to enlighten those who may incorrectly assume that their only option is to depart the country within 60 days.

Safeguarding Authorized Stay Beyond Grace Period

When an employment relationship ends, either voluntarily or involuntarily, nonimmigrant workers typically have several alternatives to extend their authorized stay in the United States beyond the 60-day grace period. Eligible individuals can pursue one of the following actions:

  • File an application for a change of nonimmigrant status
  • Submit an application for adjustment of status
  • Apply for an “employment authorization document” under compelling circumstances
  • Become the beneficiary of a non-frivolous petition to change employers

By taking one of these steps within the grace period, nonimmigrant workers can effectively extend their period of authorized stay, even if they lose their previous nonimmigrant status.

Understanding the Grace Period Dynamics

The grace period, a discretionary provision introduced in 2016, grants workers in specific visa categories, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN, up to 60 consecutive calendar days or until the end of their authorized validity period, whichever is shorter. During this time, they are considered to be maintaining their nonimmigrant status.

However, it’s crucial to note that the grace period commences on the day after employment termination, typically determined by the last day a salary or wage is paid. While the grace period allows individuals to remain in the United States, it does not authorize employment unless otherwise permitted.

Exploring Change of Status Options

Nonimmigrant workers can leverage the grace period to apply for a change of nonimmigrant status, which may include:

  • Transitioning to a dependent status, such as H-4 or L-2, allowing certain spouses to obtain employment authorization
  • Pursuing student (F-1) or visitor (B-1, B-2) status, with limitations on employment
  • Seeking a new employer-sponsored nonimmigrant status, like TN, E-3, or H-1B1

The timely filing of a non-frivolous change of status petition can prevent the accrual of unlawful presence until adjudication, provided the worker does not engage in unauthorized employment. However, it’s important to note that a change of status alone does not confer immediate employment authorization.

Adjustment of Status: A Path to Permanent Residency

In certain cases, nonimmigrant workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. This option is available for classifications such as EB-1 (Extraordinary Ability) and EB-5 (Immigrant Investor Program). Individuals with pending adjustment applications are generally permitted to remain in the United States during the authorized stay and obtain an Employment Authorization Document (EAD).

Compelling Circumstances EAD: A Temporary Reprieve

For workers who are beneficiaries of an approved employment-based immigrant visa petition (Form I-140) but do not yet have an immigrant visa available based on the Department of State’s Visa Bulletin, a “compelling circumstances” Employment Authorization Document (EAD) may provide a temporary solution. This discretionary measure allows eligible individuals facing compelling circumstances to work for up to one year while on the path to lawful permanent resident status.

Holders of a compelling circumstances EAD are considered to be in a period of authorized stay and will not accrue unlawful presence while the EAD is valid. However, they will no longer be maintaining their nonimmigrant status.

H-1B Portability: Seamless Employer Transitions

Eligible H-1B nonimmigrants can take advantage of the H-1B portability provision, which allows them to change employers and begin working for a new H-1B employer as soon as a non-frivolous H-1B petition with a request to amend or extend H-1B status is properly filed with USCIS. This process eliminates the need to wait for the new petition’s approval.

Expediting Adjudications and Premium Processing

In certain circumstances, such as preventing severe financial loss, nonimmigrant workers may request expedited adjudication of their pending applications or petitions. USCIS considers these requests on a case-by-case basis and may grant expedited processing if specific criteria are met.

Additionally, premium processing is available for petitions and applications where this service is offered, such as Form I-129 (Petition for Nonimmigrant Worker). By paying an additional fee, applicants can receive a response from USCIS within 15 calendar days.

Dependents and Family Considerations

Nonimmigrant workers facing job termination should also consider the implications for their dependents, such as spouses and children. In some cases, dependents may be eligible for employment authorization incident to status or can apply for adjustment of status alongside the primary applicant.

It’s crucial to maintain the dependents’ nonimmigrant status during the grace period and take appropriate action to ensure their continued eligibility for benefits and avoid accruing unlawful presence.

Departing the United States: A Viable Option

While the USCIS guidance highlights various pathways to extend authorized stay, some nonimmigrant workers may choose to depart the United States after involuntary cessation of employment. In such cases, H-1B and O employers are responsible for paying the reasonable costs of transportation to the worker’s last place of foreign residence.

Once abroad, H-1B holders can seek U.S. employment and readmission for any remaining period of their H-1B status, while others may complete the application or petition process abroad and seek readmission under a different eligible classification.

Navigating Legal Complexities with Professional Assistance

The intricacies of immigration law and the various options available to nonimmigrant workers facing job termination can be complex. Seeking guidance from experienced immigration attorneys is highly recommended to ensure compliance with USCIS policies and procedures, as well as to maximize the chances of successful outcomes.

Immigration attorneys can assist with filing necessary paperwork, such as Form I-129 (Petition for Nonimmigrant Worker) and Labor Condition Applications (LCAs), as well as provide valuable insights into the USCIS Policy Manual and premium processing options.

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The USCIS guidance serves as a beacon of hope for nonimmigrant workers facing job termination, providing a comprehensive overview of the available options to extend their authorized stay in the United States.

By understanding and navigating these pathways effectively, individuals can make informed decisions and take proactive steps to safeguard their immigration status and future prospects.

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