COVID-19 has taken its toll on the labor market, resulting in millions of people losing their job. Unfortunately for those on a nonimmigrant visa such as an H-1B, the clock starts ticking on their last day of work. H-1B holders generally have 60 days or until the end of their authorized stay, whichever is shorter, to find a new employer and have that employer file a new petition.
Although the 60- day grace period is discretionary, as long as the new petition is filed within 60 days USCIS officers will normally apply the grace period. This means that the candidate remains in a valid H-1B status for 60 days and can work for the new employer once the new petition is received by USCIS. This rule was designed to provide laid-off workers the opportunity to find another employer who can then file an H-1B transfer. Prior to the enactment of this rule, an employee would immediately fall out of status when they lost their job and would need to leave the country as soon as possible.
Finding a job within 60 days is difficult enough at the best of times, but given the increase in unemployment rates since the start of the pandemic, many are struggling to find suitable alternative employment.
Filing outside of the 60- day grace period presents a real problem. The candidate now falls outs of status and loses the ability to work for the new employer.
So what can the employer/employee do if the petition is filed outside of the 60 days?
We had a similar case just recently where the petition was filed outside of the 60- day grace period. USCIS issued an RFE asking for evidence that the beneficiary had maintained his status. We argued that finding a suitable position and gathering all of the necessary paperwork in 60 days was not possible, especially in the current climate and therefore exceptional circumstances warrant exceptional treatment. We asked the officer to extend the 60- day grace period and approve the petition in the U.S.
While filing outside of the 60- day grace period wouldn’t necessarily result in a denial of the petition, however, USCIS will typically approve this type of case for Consular processing only. We argued that given the ongoing pandemic it would be impossible for the employee to leave and go for Consular processing, especially as the Consulates are largely closed and/or are only accepting emergency appointments.
We also argued that it was in the employee’s interest and the Nation’s interest to limit the number of people traveling in order to avoid the spread of the virus. This case was just approved with a valid I-94, meaning that the employee does not need to leave and go for Consular processing.
This is a great result and is one of those rare occasions where common sense actually prevailed. While we hope to see more decisions like this in the future PLG Attorneys would also like to see the Biden administration extend the 60- day grace period to at least 90 days, during the pandemic and even beyond. 60 days just isn’t enough time to find a new job and get the petition filed to ensure that the employee can continue to work and maintain their status.