The Department of Homeland Security (DHS) recently announced a 60-day non-immigrant grace period for professional foreign workers whose employment has been terminated. It is a welcome accommodation to non-immigrant workers that lets them seek new job opportunities. The regulation also aims to improve the U.S. employer’s ability to hire and retain professional foreign employees.
Non-immigrant professionals work on a temporary basis in the United States and must comply with the conditions of their visas (TN, E-1, E-3, H1B, H1B1, L-1, and O-1). Before the regulation’s announcement, a TN professional who has been dismissed or whose employment period has ended would immediately acquire an illegal status.
A petitioned employee must have a valid status at the time of filing, consequently, losing a job unexpectedly may create difficulties when the visa is transferred to a new employer. The U.S. Citizenship and Immigration Services (USCIS) usually disallows a petition transfer if the recipient is unemployed for over one month. The agency, however, has shown some degree of leniency when a sponsoring employer is immediately named.
Is there a grace period after the TN Visa expires?
The provision for a 60-day grace period is found in 8 CFR § 214.1. The new DHS regulation provides a non-immigrant worker a 60-day discretionary grace period to remain in the United States after the termination of employment without violating their status. This grace period gives the worker two months to apply for a change of status, to find a new employer to whom the visa may be transferred, or to settle personal matters before leaving the United States.
Conditions for the 60-day non-immigrant grace period
A non-immigrant can stay in the U.S. for 60 days more if they have a TN visa and their employment ends or their TN visa expires. They are not permitted to work during this grace period, but they can:
- look for a new employer
- apply for another TN visa
- file for an extension or change of status
- settle their affairs
The TN visa grace period is similar to that of the H-1B visa which makes it easier for the TN applicant to continue working in the United States, Canada or Mexico.
Although a non-immigrant is not allowed to work during the grace period,
they may seek other possibilities for continuing to stay and work in the United States after 60 days. For instance, a non-immigrant may consider a job offer from a new employer willing to file a transfer petition along with an extension of stay. If the request is approved, the non-immigrant qualifies again for a 60-day grace period during the new official validity period. The non-immigrant may likewise request an extension of stay or change of status under 8 CFR § 214.1
As added good news, a ten-day grace period has been approved before the start date of the worker’s TN visa. This means the worker is allowed to enter the country ten days before they actually start work to get accustomed to their new environment.
The DHS can authorize, shorten, or deny the 60-day grace period
The Department of Homeland Security may shorten or deny a grace period when a non-immigrant files an extension of a stay or a change of status for a visa. The DHS decides on an individual basis whether information or conditions warrant shortening or denying the 60-day grace period. If the DHS finds “credible evidence” confirming approval of the grace period, the DHS regards the petitioner as having upheld valid non-immigrant status for the 60 days following employment termination.
Contact Richards and Jurusik US Immigration Lawyers
If you are seeking a TN visa or need an extension of stay in the United States,
it helps to have an experienced immigration attorney on your side. At Richards and Jurusik, we help Canadian and Mexican citizens navigate the visa application process.
Call our Buffalo office at (866) 697-1832 or (647) 360-6224 for our Toronto office. You can email us directly at firstname.lastname@example.org.