Adjusted Grace Periods Give Certain Nonimmigrants More Time to Start Work or Leave U.S.

New DHS regulations allow ten-day grace periods to certain nonimmigrant workers in the U.S.

On November 18, 2016, the Department of Homeland Security (DHS) published regulations concerning several employment-based immigration areas. The regulations, with the heading, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” will become effective on January 17, 2017.

The new regulation extends to E-1, E-2, E-3, L-1, and TN workers the same grace period already applicable to H-1B nonimmigrant workers, allowing them to enter the United States up to ten days before their intended period of employment begins and remain up to ten days after their employment ends.

These grace periods are important in order to allow nonimmigrants time to settle in and move out.

A separate provision grants a grace period of up to 60 days to E-1, E-2, E-3, H-1B, H-1B1, L-1, and O-1 workers, in order to give them time to have a subsequent employer file a petition on their behalf while they maintain lawful status (perhaps by changing employers and remaining in the U.S.), or to depart the United States.

(The immigration-law consequences of falling into unlawful status are severe; see, for example, Why People Who Overstay U.S. Visas Need to Worry About the Consular Shopping Bar.)

The new DHS regulation unfortunately also gives the agency authority to eliminate or reduce the 60-day grace period “as a matter of discretion.” Why might it do this? Potential reasons cited in which it would be appropriate for DHS to reduce or eliminate the grace period include a nonimmigrant's status violations, acceptance of unauthorized employment, or criminal convictions; or based on national security concerns.