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Graceful Ways to Stay Out of Trouble During the Grace Periods

The Chicago attorneys of Zneimer & Zneimer PC reviewed the final regulations entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01, that the that the Department of Homeland Security published on November 18, 2016.  These regulations interpreted several employment-based sections of the Immigration and Nationality Act, including those regulating employment of non-immigrant workers.

The updated regulations made some changes to the rules applicable to E–1, E–2, E–3, H–1B, L–1, or TN.   They added up to 10 days of admission before the authorized work period begins, and up to 10 days of grace period after the work-authorized period ends.  During these extra 10 days on both ends, the foreign worker may not work.

These extra days at the end of the authorized work period will be helpful to foreign workers and their families if they wish to leave the United States.  However, Chicago attorney Sofia Zneimer cautions, that for workers and employers who wish to continue their work relationship in the United States, these additional days may cause issues if not properly monitored.

One thing to keep in mind is that these extra 10 days are not work authorized.  This means that the employee will have an I-94 card that will include the additional grace period even though this period will not be work-authorized.  Thus, unless both the foreign worker and the HR mangers overseeing the I-9s for their companies are mindful of this added grace period,  they both can get in trouble, if the foreign workers inadvertently works during the grace period relying solely on the expiration of the foreign worker’s I-94.   It is important to remember that the the top of the I-797 Approval Notice will reflect the actual work-authorized period, and not the I-94.  An employee relying solely on the expiration of the I-94, who works during these extra days without authorization, can fall out of status for working without authorization.  By permitting unauthorized work during the grace period, the employer will violate the immigration law subjecting itself to fines and penalties.

Important points for HR managers and foreign workers:

  1. Note the top portion of the I-797 approval. Any time on the I-94 card that exceeds the period on the top portion of the I-797 approval is a grace period and is not work-authorized;
  2. Make sure that the I-9 form properly reflects the actual period authorized for employment, excluding the grace period, which is not work-authorized.
  3. Make sure that any re-verification system keeps track of the actual work authorized periods;
  4. Remember that the extra grace period is not work authorized and that a foreign national that works without authorization even for one day will fall out of status.

If you need help or have questions about the grace period, contact our immigration attorneys.