New 60-day Grace Period in the High-Skilled Workers Final Rule

On November 18, 2016, the Department of Homeland Security published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. This final rule will become effective on January 17, 2017. One of the benefits under this rule is a 60-day grace period for certain nonimmigrants. In particular, this is a grace period of up to 60 consecutive days during each authorized period for nonimmigrant workers in H-1B, H-1B1, L-1, E-1, E-2, E-3, L-1 and TN classifications. What is important to note about this grace period is that USCIS is not required to grant the full 60 days of authorized status in the US. Rather, it has the discretionary authority to do so. It will review the circumstances presented by the petitioner to determine how much time is necessary for the beneficiary to secure new employment in the US. Also, the negative factors that USCIS will consider, among others, in granting this grace period is whether the beneficiary engaged in employment, has a conviction or committed fraud.

Also, the 60-day grace period cannot extend beyond the admission period normally granted pursuant to the nonimmigrant status. Therefore, if the beneficiary is eligible for three years of additional H-1B status, USCIS will not add 60 days to this period. However, under the new 10-day grace period noted in the final rule, 10 additional days can be granted pursuant to the admission period.