O-1 – Immigration Briefs

H-1B Grace Period: What is it?

H1B-Grace-Period-1 We have received a good number of questions about the grace period afforded to H-1B visa holders recently, so I thought I would go through the grace period and what it covers. We discussed this previously in this blog post but this post will clarify and expand on exactly how the grace period works.

Who is Eligible for the Grace Period?

First, the grace period we are talking about is for those currently in the US in H-1B status who, for one reason or another, are unable to continue working for the employer that sponsored them, and have not yet filed an H-1B application to switch to a new employer. (technically it also applies to those in H-1B1, L-1, O-1, E-3 and TN status as well). Prior to the change in rules (about 3 years ago) people who fell into this category would be considered to be out of status and, if they filed a new H-1B application, it was really up to the individual officer if they would excuse a certain number of days out of status when adjudicating the extension of status application. USCIS decided to standardize the grace period and provide guidance on how it worked.

How Long is the Grace Period?

The grace period is for a MAXIMUM of 60 days. This means that it is not necessarily going to be the same length of period for each person. The reason for this is that the grace period cannnot extend your ability to stay in the US past the date listed on your I-94. So, if today is December 1, 2019, and your H-1B is set to expire on December 3, 2019, you would only get 2 days in your grace period. Someone else whose I-94 is not set to expire until June 1, 2020, would get the full 60 days if needed, as they have more than 60 days left on their I-94.

What Can you Do During the Grace Period?

During the grace period, you are able to file a change of status application, file a new H-1B application for another employer or even file an adjustment of status application. It is as though you are still in H-1B status during that period and you are able to do anything (immigration wise) that you could do if you were still working pursuant to your H-1B.

What About Dependents?

Any dependents in H-4 status are also authorized to stay during the grace period. In addition, as you are still considered to be in H-1B status, any EAD granted to an H-4 holder will also remain valid during the grace period.

How Many Times Can I use the Grace Period?

You are only eligible for one grace period per authorized validity period. This means that if you are with Employer A and are fired, use 10 days of the Grace period and then are rehired by Employer A under the previous H-1B, you CANNOT use the grace period again during that H-1B, even if Employer A fires you again. Conversely, if, instead of going back to work for Employer A, you work for Employer B instead, and Employer B then fires you, you would have a new 60 day grace period.

Do I have to File an Application with USCIS in order to use the Grace Period?

No, the grace period works as a matter of law – the day after your last day of work it automatically begins. This also means that USCIS cannot deny the grace period to a given person as it applies in ALL cases that meet the criteria listed.

What if I am not fired, but, instead I quit my job?

The grace period is available for any H-1B holder who stops working during the validity period of their H-1B regardless if it is because they are fired or because they quit.

I have tried to answer most of the questions that we have seen in relation to the H-1B grace period. If you have any additional questions, please do not hesitate to contact us.

Remember, if you need legal advice talk with an attorney, not a blog post.

USCIS Changes Adjudication Standard for I-129 Renewals

B61D08D2-1849-4FCD-9897-F0AC03874CFF Many of you may know that USCIS has had a policy in place that allowed those filing an application to renew their status (H-1B, L-1, E-1, etc.) to file a ‘bare bones’ application – an application with just new information and none of the initial documentation sent in with the first application to show that the person qualified for the status. This policy stated that, assuming the underlying conditions were the same for the renewal (i.e. same employer, same position, etc.) then there was no real reason to totally re-adjudicate a case unless the officer felt that the initial approval was done in error. Just this week, USCIS changed this policy.

Before going into the new policy, you maybe asking yourself “But when I filed a renewal, I filed it with substantial documentation, did I not need to do that?”. The answer is technically no, but realistically yes. While the above policy was in place, especially over the last year (but even before that) most officers did not follow this policy to the letter. In most cases, we found that if we did not include substantial documentation, even for an H-1B renewal, showing that ALL the requirements were met, USCIS would issue a Request for Evidence. So in practice, the above policy was more of a slight leaning in favor of approving the renewal rather than the intent of the policy, which was to lighten the load of officers and those filing the cases.

So what does the new policy say? It rescinds the old policy and states that each application should be adjudicated according to its own merits regardless if it is an initial application or a renewal. In practice, it simply means that there is no longer a slight bias in favor of approving a renewal, and, instead, you will need to be more careful and ensure that you provide documentation with the renewal to show that ALL qualifications are met, even if the documentation was given with the original application. It also means that the fact that a case was approved in the past, does not mean that, if you file the same documentation, the case will be approved in the future, or that USCIS will not request additional evidence the second time around.

So while this may not change the rules as much as one may have thought on first glance, it still does change them to a certain degree. That degree will depend on the strength of the underlying case.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

O and P Visa Delays and Premium Processing

Those who are filing for either O or P status should know that, surprise, the processing time listed on the USCIS website for O and P visas is incorrect.

Currently, USCIS California Service Center is listing a processing time of 2 weeks. Unfortunately the actual time period is 8-10 weeks, considerable longer. And this is assuming that there is no RFE.

The Vermont Service Center on its October 15, 2015 timeline report stated it was only taking them 2 weeks to adjudicate O and P visas. As of the November 17, 2015 timeline report, they are now stating that they are only at June 29, 2015. This new report is certainly a more accurate date, there is no question of that. However it should be noted that, as of October 15, 2015 they were NOT processing cases in a two week time frame either. That report listed an “as of date” (i.e. each report has a date that shows that the timeframes they are discussing are current “as of” a certain date) of August 31,2015. The November 17, 2015 lists an “as of” date of 9/30/2015. So, according to all the dates, the Vermont Service Center is saying that, as of August 31, 2015 they were adjudicating cases submitted on August 15, 2015, but then, as of September 30, 2015 they were only adjudicating cases submitted as of June 29, 2015. I am certain I am not the only one who finds this odd.

Unfortunately, this is par for the course when dealing with posted timeframes and USCIS. One is never sure if the actual timeframe listed is the actual timeframe, the wished upon timeframe, or somewhere in between.

It is good to remember that, for O and P visa applications one can actually file up to one year in advance of the need, so it pays to plan in advance. Of course there is always the option of using bribery, I mean Premium Processing, for an additional $1225, in which case USCIS will process your case within 15 days.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.