In a recent case, we have successfully navigated the complexities of 60-day grace period regulation to secure approval for an H-1B transfer petition, setting a precedent for others in similar situations.Our client, an invaluable professional, found themselves in a unique employment situation. They had been asked to stop work on April 13, 2023, and were on a severance period until June 30, 2023. The H-1B transfer petition for this individual was filed on July 15, 2023, leading to an RFE from the USCIS. The key challenge was establishing the maintenance of status.
The USCIS regulations at 8 CFR 214.1(l)(2) provide those workers (and their dependents) in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. The rule notes that 60-day grace period is available once during each validity period.
There has been no guidance from the USCIS on the specific juncture at which the cessation of employment and the consequent start of the 60-day grace period can be considered to have occurred. Later, USCIS has provided a clarification that the “grace period starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.” However, there remains some confusion surrounding employees who may have been instructed to stop working and leave their employer's premises, yet remain technically employed during a severance period. In such cases, it lacks clarity as to whether the employee is considered to have ceased their employment and is therefore eligible for the subsequent grace period.
In this intricate case, we argued that the 60-day grace period for this individual would start from the end of their severance period with the previous employer. We provided compelling evidence of the client's continued formal employment during the severance period, despite having ceased their day-to-day work responsibilities.
Our diligence and clear interpretation of USCIS regulations paid off. USCIS was inclined to accept our response, acknowledging that our client maintained their status throughout the severance period. As a result, the H-1B transfer petition was approved, along with an extension of stay (I-94).
This successful case sets a precedent for individuals who find themselves in similar situations, where a formal employment relationship persists during a severance period