When a foreign worker is sponsored by a U.S. employer for an employment-based visa such as an H-1B or an L-1, one of the primary characteristics of that visa status is that the worker’s immigration status is tied to that employment. The worker is not permitted to change employers or even change positions within the same company, without prior approval of United States Citizenship and Immigration Services (“USCIS”). If the foreign worker identifies a new job opportunity, the new company, or the current company wishing to promote or change the job duties must file a petition with USCIS to sponsor the worker for that new position.
When the change in employment was voluntary on the part of the worker, it typically was a smooth, albeit sometimes lengthy, process. However, it was less clear what the foreign worker was able to do when the employment relationship was terminated by the employer. Because the visa status is tied to the particular employment, technically, the terminated worker was immediately considered to be in violation of the worker’s immigration status. The worker was immediately at risk of being detained by immigration authorities and potentially placed into deportation proceedings. There were specific types of visa holders, notably F-1, H-2B, O, and P, that, by law, were given a ten day grace period at the beginning and end of their term of employment. Individuals present in one of those statuses were permitted to enter the U.S. up to ten days before the start of their employment, and had up to ten days after the end date of their employment period to leave the U.S.
However, this grace period was not provided for other types of status. Workers in some of the more common types of employment-based status did not have the same opportunity to remain in the U.S. for a period of time after the end of their employment to either wrap up their affairs in the U.S. prior to departure, or attempt to change visa status by identifying a new employer willing to sponsor the worker for status in the U.S.
In recognition of this difficulty, a new regulation issued by the Department of Homeland Security which took effect on January 17, 2017 authorizes a 60 day grace period for workers in the most common types of employment-based visa status. This new regulation provides two important grace periods for all non-immigrant employment-based visa holders. First, it provides that such individuals may enter the U.S. up to ten days before the beginning of their term of employment. Second, for workers in certain types of visa status, the regulation provides a grace period of 60 days following the termination of their employment. This 60 day grace period is specifically granted to individuals in the following visa categories: E-1, E-2, E-3, H-1B, L-1, O-1 and TN. This 60 day grace period at the end of employment applies if the worker is terminated during the period of their authorized employment, and it also applies at the end of their authorized period of employment.
In addition to allowing the worker a definite amount of time to wrap up the worker’s affairs prior to departing the U.S. without the worker being in violation of the worker’s status, the grace period also provides 60 days within which the worker may seek additional opportunities to remain in the U.S. The worker could use this time to identify a new employer willing to sponsor the worker for immigration status. A new employer would have the additional 60 days within which to file a petition to transfer the worker’s employment to that employer.
This new regulation provides some much needed clarity as to when a new employer can file a petition to sponsor a worker who has been terminated by a prior employer. It is a welcome change in the law which is expected to ease the transition of foreign workers within the U.S. workforce.
If you have any questions about transitioning foreign workers from one employer to the next, or any other employment-based visa question, please contact our office.