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Dear Editor:

As for a 10 day "grace period" following termination of employment-based nonimmigrant employment, there is none. Although the H-1B alien can extend 10 days before or after the approved period, for the purpose of making personal arrangements in anticipation of or following the approved H-1B employment, that "grace period" must be included within the approved stay in the US, as indicated on the Form I-94, or it does not exist. An H-1B (or any other) alien may not simply tack it onto the expiration date on the I-94.

Since H-1B classification derives from the approved employment, the status ends if and when the employment ends. No grace period. Accordingly, if an H-1B or other employment-based nonimmigrant is laid off, his only chance for getting INS to approve a request for change of status or change in approved H-1B employment after that time is to include a letter with the petition asking the Service Center director to exercise his/her discretion to approve the change in spite of the status lapse. Whether this is done by a SC director or not depends largely on the facts of the case, typically that the lapse was short and the reason for it beyond the alien's control.

If the SC director does not exercise the requested discretion to "forgive" the status lapse, in the case of an H-1b alien, the case will be treated as a new H-1B case, needing a new H-1B number (subject to the cap). The alien will not receive a replacement I-94 from the SC and will have to leave the US, obtain a new visa (if necessary), and re-enter the US, receiving a new Form I-94 that can be used for employment eligibility verification purposes for the new (approved) employer/employment.

Linda Dodd-Major
Acting Director of DOJ/INS Office of Business Liaison


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