Make sure you won't start accruing unlawful presence in the U.S. after your job as a specialty technical worker ends.
Eventually, we all need a vacation. If you've been working in the United States under a temporary (nonimmigrant) employment-based visa and would like to vacation here after your job ends and before your return to your home abroad, or before you join another organization, there are several key timelines you need to monitor. This article focuses on the E, H (including H-1B and other H visas), L, O, and TN visa categories.
Check Your I-94 Departure Date
No matter what type of visa you're on, the first key thing to know is when your authorized period of stay in the United States will expire. When you enter the U.S., the immigration officer makes a handwritten note in your passport with your visa category and the date by which you must depart the country or apply to extend your stay.
You also can find your expiration date on your electronic I-94 Departure Record by visiting the Custom and Border Protection agency's website and entering your name, date of birth, and passport country and date of issuance. In theory, you should be able to retrieve this information on your smartphone after leaving the immigration counter and before you collect your luggage. In practice, it can take a day or two for the database to be updated.
If your employer does not plan to extend your period of stay in the U.S., you need to plan to leave before your I-94 expiration date. For example, if your job ends on Monday, and your I-94/period of stay expires Friday, you need to plan on departing Friday at the latest.
If you stay beyond that date, you become "unlawfully present," and the consequences can become severe. After 180 days of unlawful presence, you cannot return to the U.S. for three years from the date you finally depart. If you overstay by a year, the ban on returning to the U.S. becomes ten years. These are known as the three- and ten-year bars.
Therefore, be sure you know when your I-94 expires and plan to either depart by then or arrange for your employer to extend your stay. In the above example, this would mean your post-employment vacation would be for just Tuesday through Friday.
Check Whether You Were Granted a Ten-Day Grace Period
The second timing issue to check into is the ten-day grace period that an immigration officer can give you if you are in either the E, H, L, O, or TN visa category. You can enter the U.S. up to ten days before your job is to start, and you can potentially remain for up to ten days after your job ends.
For visas that require a "petition," that is, an immigration form the employer prepares and submits to U.S. Citizenship and Immigration Services (USCIS) or Customs and Border Protection (CBP), there will be a specific period of employment authorization requested. All H, L, and O visas require a petition. Only sometimes will there be a petition for an E or TN visa. In the petition-based visa situation, if, for example, your job is to run from January 1 to December 31, 2021, the officer can allow you to enter the U.S. for the period from December 21, 2020 to January 10, 2022.
Immigration officers can, however, be inconsistent in granting the ten-day pre- and post-employment period. If you do receive the ten-day period, this would give you up to ten days for your post-employment vacation. The policy behind these ten-day periods is to allow you to prepare for your job and to settle your affairs, such as housing, car, bank, after your employment ends. It's up to you how you spend those ten days. Vacation certainly is permissible.
60-Day Maximum Grace Period
Before a new regulation became effective on January 17, 2017, it was unclear how much time workers with E, H, L, O, and TN visas had between when they left one employer and when they joined the next one. The new rule provides that you're still in lawful status, in other words permitted to remain in the U.S., for up to 60 days between jobs.
There are two circumstances that could shorten the 60-day period, however. The first is the date your I-94 Departure Record expires, which is explained above. If the I-94 expiration date is sooner than 60 days from when your job ends, the I-94 date controls.
The other circumstance is if USCIS exercises discretion under this 60-day rule to shorten the period. The policy of the new rule is to allow a worker in the U.S. on an E, H, L, O, or TN visa to seek new employer sponsorship for work authorization or to submit an application to change status to another visa category. The comments to the rule explain that when you leave one employer, you need to seek new employment immigration sponsorship or arrange for another visa category "in an expedient manner." Therefore, if you're sitting around doing nothing for 59 days and then decide to do something about your immigration status on day 60, USCIS might not grant your or your new employer's request for a change or extension of status.
Valid I-94 But Not Working or Seeking Employment: Stay a While and Then Leave
A variation on the above 60-day grace period is when your job ends and you have no plans to seek another job or another visa category. Rather, you simply want to vacation for a few weeks and then return to your home abroad.
In a situation where your I-94 Departure Record will not expire, and where your employer will not withdraw any petition that might be supporting your status in the United States, your several-week vacation should not have any negative impact upon your immigration status. If your employer plans to revoke the petition it submitted to sponsor you, be sure to communicate your plans to your employer, so that it waits, if possible, until after you depart the U.S. to revoke the petition.
Change of Status to B-2 Visitor: Not Likely But Worth Considering
If the above situations do not cover your post-employment vacation plans, a final consideration is to apply to USCIS to change your status from temporary worker to B-2 visitor. The B-2 visitor visa category is for personal, vacation-type activities in the United States.
If, rather than a few days or several weeks under the above scenarios, you have more ambitious plans, say, to hike the Appalachian Trail for six months, you could consider applying to USCIS for a change of status to allow you to remain for those six months as a visitor. Aside from the challenges you'd have on the trail, however, you're likely to face an uphill battle with USCIS. You'll need to explain and document your plans, final departure date, and financial means to support yourself. You also will need to have a way to receive mail, because USCIS might ask for additional information several weeks or months after you submit your application. If you do not respond by the deadline, USCIS will deny your application. Again, it might be possible to change to B-2 visitor status, but it would not be easy.
There are several situations that allow persons with E, H, L, O, or TN visas to remain in the United States for a vacation after their employment ends. In some cases, it's clearcut how much time you have. In others, it requires careful analysis of key documents and dates, communication with your employer, and specific plans for a final departure.
Legal Information & Books from Nolo
