By Pam Prather
Many employers, H1B holders, and even immigration practitioners talk about a grace period after an H1B employment relationship has ended.
This so-called “10 day rule” is a myth.
A common scenario we hear of is that of an H1B employee who has been laid off – although not that uncommon in this economy. Most people understand that as of that day, the H1B visa-holder is not authorized to work in the U.S., no matter what the I-94 says. Unfortunately, the widespread misconception is that the laid-off foreign national is automatically granted 10 days to find another job, or even just wrap up their affairs.
This is simply not true.
The basis for the false impression is likely the H1B provision that states:
“A beneficiary shall be admitted to the United States for the validity period of thepetition, plus a period of up to 10 days before the validity period begins and 10 daysafter the validity period ends. The beneficiary may not work except during the validity period of the petition.”
This provision often does not apply in the best of circumstances, and certainly does not when an employee is terminated. The USCIS has taken the position that because the foreign national was admitted for the specific purpose of providing services to his/her U.S. employer, once that relationshipis over the H1B employee is no longer in status. Severance pay, unused vacation days, or any other arrangement to ‘stretch’ the employment does not help.
Once the employee is no longer working for the employer, he/she is no longer in valid non-immigrant status unless another application has been filed on their behalf.
Luckily, capturing laid-off professional workers is not the highest priority for the Department of Homeland Security. Often, if the case is presented carefully, the Immigration Service will ‘forgive’ the employee of a short period of invalid status. Again, this is NOT a “10 day rule”, but rather a strategy employed by experience immigration attorneys that is often successful.
Remember, contact a reputable immigration attorney in situations such as this, where there is so much at stake – stay, status, job, home, and even future visits to the United States.