Why is There no Grace Period for Terminated H-1B Workers?

In this economy, H-1B workers and their families are like any other U.S. worker. They face many of the same hardships including the prospect of being unexpectedly laid off. The H-1B worker is different from the American worker in that as soon as the H-1B worker is laid off, he or she must leave the U.S. immediately and return home.

There is simply no grace period for terminated H-1B workers, period. This article addresses the other grace periods that USCIS has allowed in the H-1B context and offers some guidance for H-1B workers who have been terminated who changed status from H-4 to H-1B.<

It is common knowledge that there is no ten-day grace period after an H-1B worker has been terminated. The H-1B must cease employment through a bona fide termination. Bona fide termination is a legal term of art so it is advisable to ensure that the H-1B worker has truly been terminated. If so, there is no grace period. Remaining in the U.S. past a bona fide termination results in accrual of unlawful presence. This draconian rule has dire consequences for foreign workers on H-1B status since they must immediately leave the U.S.

However, USCIS has recognized grace periods in other situations. The policy behind why the USCIS allows grace periods in these situations and not for terminated H-1B employees is not discussed in great detail in this article, but it is a very good question and one deserving of much debate. Here are the situations that USCIS gives a ten-day grace period:

1. The H-1B worker can be admitted to the U.S. up to 10 days prior to the validity date of their petition;
2. The H-1B worker has a ten-day grace period following the expiration of the period of admission; and
3. When an H-1B extension has been denied, the H-1B worker is allowed up to ten days to depart the U.S.

Sadly, the termination of H-1B employment is not covered by any of these exceptions. One wonders whether the USCIS is promoting a valid policy of not giving a fired H-1B worker any grace period to depart the U.S., while at the same time giving denied H-1Bs time to depart legally. The same can be said of an H-1B worker whose admission has expired. Layoffs and terminations of employment simply do not allow a ten-day grace period.

There are instances that USCIS has recognized grace periods in the H-1B context. The H-1B worker can be admitted to the U.S. up to 10 days prior to the validity date of their petition. If you obtain H-1B status abroad, the U.S. government will allow you a ten day grace period to come to the U.S. and prepare for your employment. Once H-1B status expires (i.e., the date on the I-94 has expired), the H-1B worker has a ten-day grace period to exit the U.S. When an H-1B extension has been denied, the H-1B worker is allowed up to ten days to back his or her bags and depart the U.S. Again, why a terminated H-1B worker is not offered the same courtesy is not readily ascertainable. There does not appear to be a valid policy being promoted by punishing a fired H-1B worker and offering some assistance to one who could not meet H-1B eligibility to begin with.

An interesting question, however, the answer is also no. Your status does not simply revert back to your previous H-4 status. If you changed status from H-4 to H-1b and were subsequently fired through a bona fide termination, you must file an application to change status to H-4 with the USCIS. It is a matter of the “Last Action Doctrine” that states you are given the status of the last action taken by the government, either at the USICS, at a border or a consulate. You cannot simply terminate the H-1B status and be automatically reverted to the former H-4 status because the last action taken was receipt of H-1B status. You need to have some action by the U.S. government granting you status. The result is that you would be out of status on H-1B, not in-status on H-4.

The “Last Action Doctrine” recognizes the general rule under immigration law that most immigration benefits are not automatic. Immigration benefits (such as receiving H-4 status or H-1B status or any other nonimmigrant status) occur by taking action with the government. The same cannot be said of immigration detriments such as losing status or being placed in deportation.

For example, you can go out of status automatically by being terminated on H-1B status. You are automatically (and instantly) out of status. Immigration benefits require you to prove by a burden of proof that you are eligible for the benefit. Hence, losing H-1B status, you have lost your benefit. You must petition the government and prove to them you eligible for a different status. If you have a question about whether or not it is necessary to file something, it is best to consult a qualified immigration attorney before taking any action. The consequences are drastic. You could potentially change your legal status in the United States.

If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.