Regulations permit a discretionary 60-day grace period in several categories including H-1B coveted by Indians
Nonimmigrant workers who have lost jobs may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations, according to US Citizenship and Immigration Services (USCIS).
Regulations permit a discretionary 60-day grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status, USCIS said in a press release Monday.
During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (e.g., an H-1B change of employer petition for a worker in H-1B status).
Read: USCIS to automatically extend green cards for naturalization applicants (December 12, 2022)
Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status (such as B-2 visitor nonimmigrant status) or an application for adjustment of status, if eligible.
However, workers who are unable to timely file a change of status application, or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period.
Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved.
Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) can ‘port’ the immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer.
Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2).
Read: H-1B visa stamping may soon be allowed inside the US (September 30, 2022)
Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. In addition, some spouses of H-1B workers may be eligible for work employment authorization if certain requirements are met.
Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2). However, B-1 and B-2 nonimmigrant visitors are specifically precluded by statute from “performing skilled or unskilled labor” in the United States, USCIS said.
Certain F-1 students, by regulation, may engage in limited employment. Potential pathways for noncitizen STEM professionals can be found on USCIS Options for Noncitizen STEM Professionals to Work in the United States page.
Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status.
For example, depending on the specific facts presented, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 classifications. Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application.
For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, USCIS said.
Read: Options to stay In USA after H1B Job Lay-off (August 9, 2022)
Once abroad, H-1B holders may seek US employment and readmission to the United States for any remaining period of their H-1B status.
Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States, USCIS said.