The 10-Day Grace Period for H-1B and L-1 Visas and Dependents: Rules and I-94 Practice
Based on the 2016 Department of Homeland Security final rule and 8 C.F.R. 214.1(l), this article explains that H-1B, L-1 and related dependent statuses may receive two grace periods of up to 10 days each, one before the status takes effect and one after it ends. The actual period is controlled by the I-94 record, the grace period is not automatic, and work is not permitted during it. The article also discusses, in light of the reader's situation, the pros and cons of filing a timely extension versus changing to B status.
Today a reader asked: their spouse holds H-1B status and, due to rushed preparations, may only be able to file for an extension within the 10-day grace period after their status expires. The reader asks whether it is necessary for themselves and their child to apply for a change to B status to avoid a gap in status.
The Two 10-Day Grace Periods for H and L Status
On November 18, 2016, the Department of Homeland Security issued a final rule amending regulations on certain nonimmigrant grace periods, effective January 17, 2017. Under the revised 8 C.F.R. 214.1(l), E-1, E-2, E-3, H-1B, L-1, or TN visas and their dependents may receive two 10-day grace periods: 10 days before the validity period begins and 10 days after it ends. During this time, they may apply for an extension but may not work (unless they have other work authorization).
The original text of 8 C.F.R. 214.1(l) is available here, and is appended below:
(l) Period of stay.
(1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.
(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.
(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.
These 10 x 2 days of grace period are intended to give applicants time to "prepare to begin employment" and to "prepare to depart the United States or extend/change status" ([…] two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status). They require CBP/USCIS to grant them to you and are not automatically available.
For example, if your I-797 approved H-1B/L-1 status is from 2023/01/01 to 2026/01/01:
- The I-94 issued to you by CBP/USCIS may be from 2022/12/22 to 2026/01/10; in that case, you must leave the United States before 2026/01/10, or extend/change status.
- The I-94 issued to you by CBP/USCIS may only be valid until 2026/01/01; in that case, you do not have the 10-day grace period and must leave before 2026/01/01, or extend/change status.
Back to the reader's question: the reader and their spouse are also eligible for the 10-day grace period, but it is not automatically granted and is based on the I-94. If they can file extension applications together before the I-94 expires, the reader and their child do not need to separately apply for B status; if they cannot file for an extension in time, the reader should worry not only about their own and their child's status but also about their spouse's status.
