The INS and this web site have repeatedly warned the immigrant community on this issue, but our law firm has been receiving calls from laid-off H-1B professionals arguing either 10-day grace period or 30-day or 60-day or 90-day or even 6-month grace period. Such misunderstanding can result in a grave consequence since they do not realize that they are out of status and can be arrested and deported if they are exposed to the agencies. It is thus critically important that the H-1B professional community clearly understands the rules and make no mistake about the law.
10-Day Departure Time After Completion of H-1B Petition Period: The INS regulation gives 10 days for the departure from the U.S. for the H-1B professional who completes H-1B services as provided in the approved H-1B petition. During this period, such alien remain in status and can "legally" seek change of status or extension of status. During this 10-day period, the alien does not, repeat not, have an authorization for employment.
Fall Out-Of-Status in All Other Circumstances if Employment Is Terminated for Whatever Reasons: If employment is terminated during the period of current H-1B petition period, the H-1B alien falls out of status. For the purpose of the immigration enforcement, such alien can be arrested and subject to deportation proceedings if the information is known to the INS enforcement officials.
Extension or Change of Status Application Eligibility on "Extraordinary Circumstances" Ground: The fact that certain alien fell out of status because of termination of employment and can be subject to enforcement does not mean that all of them are not eligible for application for COS/EOS. Under the INS regulation, the alien is eligible for COS or EOS if he/she establishes "extraordinary circumstances" for the "untimely" filing of COS/EOS after the employment is terminated. However, filing such application does not turn the alien's legal status automatically into "in status" even though the INS enforcement officials may consider a case-by-case situation and hold in abeyance of enforcement action in certain situation. It is thus critically important that the people understand the distinction between consequence of unemployment on enforcement purposes and consequence of unemployment on eligibility of COS/EOS . It appears that most of the confusion on the so-called "grace-period" in the H-1B immigrant community stem from the information which they get from their lawyers or employers or friends that they can still transfer H-1B status to another employer even after unemployment in certain cases. This statement is true in certain cases, but this statement does not tell the people that for the purpose of deportation law, they will still be subject to deportation actions if they are exposed to the immigration investigators and deportation officials.
What Are "Extraordinary Circumstances" for the Purpose of COS/EOS Eligibility? This is the subject which most of the people are talking about when they allude to so-called "grace-period." This reporter must again caution the readers that this discussion is strictly limited to the question of eligibility for change or extension of status and not, repeat not, related to the implication for enforcement by the INS local officials.
a) Definition: This is a loose standard the interpretation of which has been left to the adjudicators and policy makers, even though broadly it has given a guideline such as "humanitarian concerns" "economic loss" or "equitable considerations related to something which was caused by factors beyond the control of the alien" etc. Because of the loose end, it has been very much left to the "interpretation" and "discretion" of the INS as to how they interprete within this broad guideline. Let's see how this has been interpreted in actual practice of the agencies:
b) Service Centers: They have never announced any official policy, but through the communications with the AILA, different Service Centers revealed their different practices as follows (This does not apply if the alien voluntarily departs from the employment):
- Nebraska Service Center: Initially 60 days, and later 30 days, until recent decision to apply the interpretation narrowly. Since the "zero tolorance" policy is released, they no longer exercise such discretion on any "fixed period" of unemployment. Cases are handled strictly on a case-by-case basis.
- Vermont Service Center: Initially upto 90 days but recently follow the suite of other Service Center practices which are described above.
- Texas Service Center: Initially upto 60 days and the current situation is same with other Service Centers.
- California Service Center: Initially upto 60 days and the current situation is same with other Service Centers.
- Accordingly, when it comes to the Service Centers practice, there is no longer so-called "grace period."
c) INS HQ: In the past, the INS HQ interpreted the term "extraordinary circumstances" broadly and allowed the Service Centers to exercise their discretion generously. This was reflected in the so-called AC 21 Memorandum which stated when the regulation is enacted, it will provide a window of 60-day period. Because of this memorandum, the lawyers and the Service Centers loosely assumed that the INS would exercise such discretion within that window period of time. This also became known to the immigrant community "a grace period." Even though the Memornadum clearly stated that such window period will not be available until the regulation is actually enacted, the rumor of grace-period of 60-day started spreading like a wild forest fire. In order to stop this fire, the INS officials repeatedly released their views that there was no such window period since AC 21 regulation has yet to be enacted, the fire has never stopped! At this time, god knows when the INS will release the AC 21 regulation. The only thing the people know is that because of the recent security sweep and tightening of adjudication process, the INS has been undertaking intensive scrutiny of "out-of-status" of nonimmigrants. It is thus extremely dangerous and irresponsible that people keep spreading the rumor of so-called "grace-period" for H-1B transfer. This reporter is really concerned that because of the current environment of the INS enforcement, this can produce many victims in the future. Eventually, it is the H-1B professionals themselves who should check the correctness of the rumors and not act just on rumors!!
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Source: http://www.immigration-law.com/
Breaking News Archive VI
(11/01/2002 - 02/28/2003)
10-Day Departure Time After Completion of H-1B Petition Period: The INS regulation gives 10 days for the departure from the U.S. for the H-1B professional who completes H-1B services as provided in the approved H-1B petition. During this period, such alien remain in status and can "legally" seek change of status or extension of status. During this 10-day period, the alien does not, repeat not, have an authorization for employment.
Fall Out-Of-Status in All Other Circumstances if Employment Is Terminated for Whatever Reasons: If employment is terminated during the period of current H-1B petition period, the H-1B alien falls out of status. For the purpose of the immigration enforcement, such alien can be arrested and subject to deportation proceedings if the information is known to the INS enforcement officials.
Extension or Change of Status Application Eligibility on "Extraordinary Circumstances" Ground: The fact that certain alien fell out of status because of termination of employment and can be subject to enforcement does not mean that all of them are not eligible for application for COS/EOS. Under the INS regulation, the alien is eligible for COS or EOS if he/she establishes "extraordinary circumstances" for the "untimely" filing of COS/EOS after the employment is terminated. However, filing such application does not turn the alien's legal status automatically into "in status" even though the INS enforcement officials may consider a case-by-case situation and hold in abeyance of enforcement action in certain situation. It is thus critically important that the people understand the distinction between consequence of unemployment on enforcement purposes and consequence of unemployment on eligibility of COS/EOS . It appears that most of the confusion on the so-called "grace-period" in the H-1B immigrant community stem from the information which they get from their lawyers or employers or friends that they can still transfer H-1B status to another employer even after unemployment in certain cases. This statement is true in certain cases, but this statement does not tell the people that for the purpose of deportation law, they will still be subject to deportation actions if they are exposed to the immigration investigators and deportation officials.
What Are "Extraordinary Circumstances" for the Purpose of COS/EOS Eligibility? This is the subject which most of the people are talking about when they allude to so-called "grace-period." This reporter must again caution the readers that this discussion is strictly limited to the question of eligibility for change or extension of status and not, repeat not, related to the implication for enforcement by the INS local officials.
a) Definition: This is a loose standard the interpretation of which has been left to the adjudicators and policy makers, even though broadly it has given a guideline such as "humanitarian concerns" "economic loss" or "equitable considerations related to something which was caused by factors beyond the control of the alien" etc. Because of the loose end, it has been very much left to the "interpretation" and "discretion" of the INS as to how they interprete within this broad guideline. Let's see how this has been interpreted in actual practice of the agencies:
b) Service Centers: They have never announced any official policy, but through the communications with the AILA, different Service Centers revealed their different practices as follows (This does not apply if the alien voluntarily departs from the employment):
- Nebraska Service Center: Initially 60 days, and later 30 days, until recent decision to apply the interpretation narrowly. Since the "zero tolorance" policy is released, they no longer exercise such discretion on any "fixed period" of unemployment. Cases are handled strictly on a case-by-case basis.
- Vermont Service Center: Initially upto 90 days but recently follow the suite of other Service Center practices which are described above.
- Texas Service Center: Initially upto 60 days and the current situation is same with other Service Centers.
- California Service Center: Initially upto 60 days and the current situation is same with other Service Centers.
- Accordingly, when it comes to the Service Centers practice, there is no longer so-called "grace period."
c) INS HQ: In the past, the INS HQ interpreted the term "extraordinary circumstances" broadly and allowed the Service Centers to exercise their discretion generously. This was reflected in the so-called AC 21 Memorandum which stated when the regulation is enacted, it will provide a window of 60-day period. Because of this memorandum, the lawyers and the Service Centers loosely assumed that the INS would exercise such discretion within that window period of time. This also became known to the immigrant community "a grace period." Even though the Memornadum clearly stated that such window period will not be available until the regulation is actually enacted, the rumor of grace-period of 60-day started spreading like a wild forest fire. In order to stop this fire, the INS officials repeatedly released their views that there was no such window period since AC 21 regulation has yet to be enacted, the fire has never stopped! At this time, god knows when the INS will release the AC 21 regulation. The only thing the people know is that because of the recent security sweep and tightening of adjudication process, the INS has been undertaking intensive scrutiny of "out-of-status" of nonimmigrants. It is thus extremely dangerous and irresponsible that people keep spreading the rumor of so-called "grace-period" for H-1B transfer. This reporter is really concerned that because of the current environment of the INS enforcement, this can produce many victims in the future. Eventually, it is the H-1B professionals themselves who should check the correctness of the rumors and not act just on rumors!!
-------------------------------------------------------------------------------
Source: http://www.immigration-law.com/
Breaking News Archive VI
(11/01/2002 - 02/28/2003)
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