Applicable Grace Periods Upon H-1B Denial and Termination
The present briefing summarizes the rules governing grace periods applicable upon denial or withdrawal of an H-1B petition (1) and upon termination of employment under H-1B visa (2).
To better illustrate these rules, we will analyze different factual scenarios below.
1. H-1B denial or withdrawal
The below scenarios each contemplate the situation where an H-1B petition subject to the cap was properly and timely filed on April 1st of a given fiscal year on behalf of an individual who is in F-1 status (student visa) and on optional practical training (OPT). We are assuming that the student’s OPT is expiring on or after April 1st and that the H-1B petition has been receipted (selected in the lottery).
Under the “cap-gap” rule, the student’s F-1 status and employment authorization are automatically extended until September 30th of that fiscal year. This eliminates the “gap” between the time the F-1 would have expired and the October 1st H-1B start date.
As a general rule, the denial of an H-1B petition triggers a 60-day grace period, subject to some exceptions discussed in scenario 3 below. The day on which the 60-day grace period starts running depends on the date of the H-1B denial, as illustrated below. In addition, a 10-day OPT grace period that allows to continue employment may also come into play, as described below.
Scenario 1 – denial or withdrawal before Sept. 30th
(a) Denial
Let’s assume Mr. A is on OPT cap-gap, which runs until September 30th. His H-1B petition sponsored by Company A is denied on August 1st. USCIS mails out the denial notice, dated August 1st, to Company A. Mr. A is notified of the denial on August 5th. Since the denial occurred before the expiration of his OPT (which was automatically extended until September 30th under the cap-gap rule), Mr. A is eligible for a 10-day grace period starting from the date of denial. Consequently, despite the denial, he is still authorized to work for Company A until August 11th to wrap up his assignments.
Concurrently, the 60-day grace period also kicks in on August 1st, which means that Mr. A will have until September 30th to either enroll in a new F-1 program, file a new H-1B petition with another employer, change status to another visa category or depart the country. Mr. A is not authorized to work for Company A or any other employer during the 60-day grace period – consequently, he must cease employment with Company A on August 11th.
(b) Withdrawal
Same facts as above, except that Company A decides to withdraw the H-1B petition prior to adjudication due to a change of business plan. By the end of July, Company A sends a letter to USCIS requesting withdrawal of the H-1B petition filed on behalf of Mr. A. On August 1st, USCIS revokes the H-1B petition filed by Company A.
The H-1B withdrawal has the same consequences as the H-1B denial in terms of grace periods (cf. Scenario 1(a)). This means that the 10-day and 60-day grace periods both kick in on August 1st. As a result, Mr. A must cease employment with Company A by August 11th at the latest and he will have until September 30th to either enroll in a new F-1 program, file a new H-1B petition with another employer, change status to another visa category or depart the country.
Scenario 2 – denial or withdrawal after Sept. 30th
Let’s consider another scenario. On September 30th, Mr. A’s H-1B petition is still pending with USCIS and no decision has yet been made. Even though his case is still pending, Mr. A is no longer authorized to work after September 30th. He is not eligible for the 10-day OPT grace period since his cap-gap extension expired on September 30th. However, he is eligible for the 60-day grace period starting from October 1st. Consequently, he has until November 30th to depart the country or to take other steps to maintain legal status in the U.S. The same applies for an H-1B withdrawal after September 30th.
In this scenario 2, whether the denial or withdrawal occurs before or after November 30th does not impact the 60-day grace period which will start running from October 1st regardless of the date of the H-1B denial.
(a) H-1B petition still pending after Nov. 30th
Let’s consider that Mr. A’s H-1B petition is still pending on November 30th, date on which his 60-day grace period expired, and that he did not take any steps to maintain his legal status in the U.S. (e.g. by enrolling in a new F-1 program or changing status to another visa category). If Mr. A decides to stay in the country after November 30th, he is considered out of status because he is no longer covered by the 60-day grace period and he has not taken any steps to maintain or change status. However, because he has a pending change of status with USCIS, he may be able to rely on the safe harbor of “authorized stay” to avoid accruing illegal presence while his petition is pending. While waiting for the H-1B decision, Mr. A is not allowed to work and is not eligible to change status to another visa category in the U.S. (such as enrolling in a new F-1 program or filing a new H-1B petition). In this scenario, Mr. A has to leave the country immediately upon the H-1B denial.
Please note that the doctrine of authorized stay presents uncertainties. Therefore, we would not necessarily recommend taking this route, especially in the current immigration climate.
(b) Impact of an RFE
Let’s consider a slight tweak to the above scenario. On August 1st, USCIS issues a request for evidence (“RFE”) seeking additional evidence in support of the H-1B petition. Company A’s attorney sends out the RFE response on August 15th without premium processing. On September 30th, the RFE response is still pending and no decision has yet been made by USCIS. The fact that there is an RFE pending does not alter the conclusions in Scenario 2(a) above as to Mr. A’s status. Consequently, he must stop working after September 30th and he is eligible for the 60-day grace period starting from October 1st, regardless of when the final H-1B denial is issued by USCIS.
Scenario 3 – Denial for fraud, misrepresentation or violation of status
If the H-1B petition is denied due to fraud/misrepresentation or due to a violation of F-1 status, the beneficiary (Mr. A in the above examples) would not be entitled to any grace periods discussed above. In such scenario, the beneficiary must cease employment and depart the country immediately to avoid accruing illegal presence.
2. Termination of H-1B employment
In the below examples, we will address the situation where an H-1B beneficiary is working for his or her employer, but the latter later decides to terminate his or her employment (lay-off or other reason).
Under the current regulations, an alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification shall not be considered to have failed to maintain non-immigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period. 8 CFR 214.1(l)(2)
This 60-day grace period applies following termination of H-1B employment by either employee or employer. The terminated employee is not authorized to work during such grace period, unless an exception applies.
Consequently, following termination of employment, the H-1B beneficiary has 60 days to either file for an H-1B transfer with another employer, seek a change of status to a different visa category or depart the country.
It should be noted that the above 60-day grace period is subject to the validity period of the beneficiary’s H-1B status – indeed, the rule provides that the grace period runs for up to 60 days “or until the end of the authorized validity period, whichever is shorter.” To illustrate this, let’s assume that Mr. A’s authorized stay in H-1B status is valid until November 1st as shown on his I-94. If Mr. A is terminated by Company A (H-1B petitioner) on September 15th, the 60-day grace period will be shortened and will only run until November 1st.
The above 60-day grace period upon termination of employment also applies to the following visa categories: L-1, O-1, TN, E-1, E-2, and E-3.
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Sources
SEVP Policy Guidance 1004-03, “Update to Optional Practical Training Authority” dated April 23, 2010
8 CFR 214.2(f)(5)(vi)
8 CFR 214.1(l)(2)
Conclusion
This brief overview covers only some of the situations in which grace periods apply. Please do not hesitate to contact the Law Offices of Deacon Zhang if you have any questions or would like to discuss your immigration issues. Our firm specializes in all business immigration matters and our highly qualified immigration attorneys are available to help you navigate the complex rules that govern the status of foreign nationals.
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Disclaimer: The information provided above is of a general nature and does not constitute legal advice. You should always talk to a licensed attorney before making any decision about your case.