The Options for Nonimmigrant Workers Following Termination of Employment guidance recently issued by the USCIS in anticipation of the widespread layoffs and reductions in force that may occur in 2023 makes this an appropriate time to study in detail the 60-day grace period that is available for certain nonimmigrant foreign national workers whose employment has ended.
What is the 60-Day Grace Period and to Whom Does it Apply?
The USCIS regulations at 8 CFR 214.1(l)(2) provide that workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status shall not be considered to have failed to maintain nonimmigrant status solely due to a “cessation of employment.” This provision enjoins USCIS from determining that a worker is ineligible for an extension of stay or change of status on the sole basis that he or she is no longer employed by a petitioning entity.
More specifically, the regulations permit a discretionary grace period that allows workers in the above specified classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.
The 60-day grace period, made effective by a January 2017 Final Rule signifies a welcome retreat from the agency’s prior absolutist position that a nonimmigrant worker failed to maintain status immediately upon the termination of employment and was thus ineligible for an extension of stay or change of status as soon as this employment ceased.
Are Terminated Workers Guaranteed a Full 60-Day Grace Period?
8 CFR 214.1(l)(2) notes that the injunction will stay in place for 60 days or “until the end of the authorized validity period, whichever is shorter.” Thus, a worker whose nonimmigrant petition expires 30 days after his or her employment ceases would only be able to benefit from the grace period for 30 days and would not have the full 60 days.
Crucially, despite the use of the mandatory “shall”, the regulation at 214.1(l)(2) contains a statement that “DHS may eliminate or shorten [but notably not lengthen] this 60-day period as a matter of discretion.” The commentary to the USCIS regulation listed a number of circumstances that may cause a USCIS adjudicator to exercise discretion to shorten or eliminate a grace period, including violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions. This list is non-exhaustive, and there is nothing to prevent a USCIS officer from deciding to shorten or eliminate the 60-day grace period on another basis. We should note, however, that we are not aware of any situations in which the USCIS has shortened or denied the 60-day grace period in its adjudication of a nonimmigrant petition.
How Often Can the 60-Day Grace Period be Used?
The rule at 214.1(l)(2) states that the 60-day grace period is available once during each validity period. This makes it clear that a foreign national worker may seek the 60-day grace period on multiple occasions, provided that the worker is the beneficiary of a different petition. Thus, an H-1B employee whose employment is terminated by Employer 1, may use the 60-day grace period to have a new H-1B petition filed by Employer 2. If the same employee’s employment is subsequently terminated by Employer 2, the employee may use a new 60-day grace period, but only once the H-1B petition filed by Employer 2 is approved.
What is a Cessation of Employment?
There is no clarification in the text of the USCIS regulation of what constitutes a “cessation of employment.” The USCIS may have intended to mitigate the hardship faced by an employee whose employment was involuntarily terminated, but nothing prevents the 60-day grace period from being available to a person who has simply quit his or her employment and wants to stay in the United States. Employees that fall into the latter category should be mindful of the discretion the rule grants to the USCIS to eliminate or shorten the 60-day grace period, and should be mindful that there is a danger that the agency will be less sympathetic to a situation where an employee has unilaterally decided to leave an employer than to a situation where an employee has been laid off by his or her employer and may decide to use its discretion to shorten or eliminate the 60-day grace period.
When Does the Cessation of Employment Occur?
There has been no guidance from the USCIS on the specific juncture at which the cessation of employment and the consequent start of the 60-day grace period can be considered to have occurred. Specifically, it is not clear in the case of an employee who has been told to stop work and leave the employer’s premises but nonetheless remains formally an employee through a severance period. Was the cessation of employment when the employee stopped work or when the severance period ended? If the employee chooses to claim the latter, he or she should be ready to provide evidence of the continuing formal employment relationship during the severance period, including any communications received from the employer. This may be requested by the USCIS in its adjudication of a nonimmigrant petition filed on his or her behalf.
Despite the lack of clear guidance from USCIS, the conservative, or best practice, approach would be to consider the last date of actual employment (i.e. the last day on which the employee provides services in exchange for compensation), as the date the “cessation of employment” occurs.
How Do You Request the 60-Day Grace Period?
There is no formal mechanism to request a 60-day grace period. Typically, a worker whose employment has ceased will have a petition filed on his or her behalf with a request for an extension of stay or will file an application for a change of status and will include a statement that he or she is no longer employed, a description of the circumstances of the cessation of employment, and a statement that he or she is eligible for the 60-day grace period. In this regard, documentation concerning the factual circumstances surrounding the cessation of employment will be important, not only to convince the USCIS adjudicator not to limit or deny the grace period, but also to fix the precise date of cessation so that it can be shown that 60 days have not elapsed and also so that the full grace period can be utilized. Such documentation could take the form of a termination letter from the employer, a paystub with a severance payment, or any similar materials.
Can You Start Work During the 60-Day Grace Period?
The commentary to the regulation creating the 60-day grace period makes it clear that the exercise of H-1B portability is permitted during the 60-day grace period. This means that an H-1B worker who finds a new employer may start work with that employer as soon as the employer files an H-1B petition on behalf of the employee. Persons holding L-1, TN, O-1 or E status are not eligible for such portability and must either have a petition approved or leave and reenter the United States in the appropriate status in order to start work with a new employer.
Can You File an Application to Change Status During the 60-Day Grace period?
It is certainly possible to file an application to change status to a different nonimmigrant category during the 60-day grace period, and this is one of the measures that the USCIS suggests in its December 2022 guidance for terminated workers. Such statuses could include primary statuses that authorize employment, such as L-1, O-1, TN and E, as well as dependent statuses that also authorize employment incident to that status such as L-2 spousal status and (under certain circumstances) H-4 spousal status. In the latter cases, it may be more expeditious, given USCIS delays in processing I-539 applications, to leave the United States and reenter in the appropriate dependent status. However, those seeking this route need to also consider the potential of travel-related and/or consular processing delays.
The USCIS in its guidance to terminated workers suggests that filing an application to change status to B-2 Visitor for Pleasure is an option that will prevent the accrual of unlawful presence and allows the terminated worker to remain in a period of authorized stay after the end of the 60-day grace period. While filing such an application will provide protection against removal from the United States, persons considering this option should exercise caution. An application to change status to B-2 must contain an explanation of what the terminated worker plans to do in B-2 status and any activities contemplated by the worker must be legitimate under B-2 norms. Thus, if the worker wants to change status to B-2 to sell a home and otherwise wind down his or her personal affairs before leaving the United States, these activities will be considered legitimate. If he or she plans to look for another job in the United States while in B-2 status, however, disclosure of this in the application may cause the application to be denied. In addition, an issue may arise if the USCIS receives a petition seeking employment authorization while the B-2 status application is pending.
Can You Travel During the 60-Day Grace Period?
A departure from the United States while in the 60-day grace period is not prohibited, but is not recommended and may bring with it added risks, especially if the nonimmigrant worker has not yet had a petition filed on his or her behalf by a new employer. For most nonimmigrant workers in this situation, a return to the United States will require the presentation of a visa stamp and an I-797 approval notice in the name of a petitioner for which the worker no longer works, and doing so is highly likely to invite problems from US Customs and Border Protection, which may not have heard of the 60-day grace period rule, and, even if it has, may feel that it is not bound by what it perceives to be a USCIS rule.
It is important to remember that the 60-day grace period is still defined as “discretionary” by USCIS regulation and therefore, one should not assume that they are entitled to reclaim time left within this period if they choose to depart the country. Where an individual departs the country during the 60-day grace period without a new I-797 approval notice from a new employer and valid visa stamp, the individual should prepare for the possibility of being denied re-entry at the U.S. border.
Is There a Possibility that the 60-Day Grace Period Will be Increased?
As has been reported in a number of news outlets, there has been a push, including by members of Congress, to have the USCIS increase the 60-day grace period to 120 days. Such an increase would not require legislative action but would require USCIS to publish a new regulation and submit this for public comment. The USCIS has to date not responded to requests to increase the 60-day grace period.
If the layoffs and reductions in force anticipated by the USCIS do indeed materialize, many foreign national workers in nonimmigrant status will look to the 60-day grace period as a lifeline to enable them to remain in the United States in the immediate post-termination period. In doing so, they should clearly understand the scope of this grace period and precisely what it allows and does not allow.