Is there a grace period after my H-1B1 employment is terminated?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Singaporeans working on H-1B1 status in the U.S. may wonder if they have any grace period after their employment is terminated.  

The answer is Yes, but some discussion is warranted. 

The applicable federal regulation is found in 8 CFR 214.1(l)(2), which provides as follows: 

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. 

From the above, in general a Singaporean on H-1B1 status has a 60-day grace period counting from the date of cessation of employment.  However, this 60-day grace period can be shortened if the "end of the authorized validity period" is earlier than your 60th day. 

Here's an example to illustrate.  If a Singaporean H-1B1 visa holder was admitted into the U.S. on February 14, 2022 (and admitted for a one-year duration until February 13, 2023 as reflected on the I-94 expiry date) to work for the H-1B1 employer, and the H-1B1 employment was terminated on June 30, 2022, then the Singaporean has the full 60 days of the grace period.  However, if the Singaporean's H-1B1 employment were to terminate on January 1, 2023, the Singaporean would have less than 60 days of the grace period because the "end of the authorized validity period" falls on February 13, 2023.  

In summation, if you are an H-1B1 worker facing employment termination, it would be helpful to seek customized feedback from an experienced business immigration attorney so that you can better understand how the grace period works in your situation and plan your next steps accordingly.

A footnote:  There is an additional layer for USCIS petition-based H-1B (not H-1B1) workers to consider that is beyond the scope of this H-1B1 blog post because of how USCIS interprets the above 60-day-grace-period regulation 8 CFR 214.1(l)(2) in the context of H-1B change-of-employer petitions that are being filed during the grace period when the terminating employer sends a letter to USCIS under another regulation 8 CFR 214.2(h)(11)(Revocation of approval of petition).  If you are an H-1B worker facing employment termination, it would probably benefit you to speak to an experienced business immigration attorney as well.

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.

Three Misconceptions about the H-1B1 (Singapore) Visa to Avoid

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin. 

Similar to a common adage about our health, "prevention is better than cure", the same applies to navigating US immigration.   As such, in this blog post I am going to identify three misconceptions about the H-1B1 (Singapore) visa that you can try to avoid.

Misconception #1:  The expiry date of the H-1B1 visa in my passport tells me how long I can stay in the U.S.

Correction to the misconception:  The expiry date of the H-1B1 visa tells you the expiry date of when you can use it to enter the U.S. from abroad (To put it in a different way, the visa in your passport serves as the "entry ticket" only).  Instead, how long you are allowed to stay in the U.S. is determined by the CBP officer at the airport when you arrive and the record of the expiration date of your duration of stay is found in your online I-94 record that you can access here.*

[*Unfortunately, to compound matters, some CBP officers are not familiar with the H-1B1 Singapore visa classification and make the same mistake of confusing the visa expiry date with the duration of stay expiry date.  The correct approach is illustrated in the examples I have described in my previous blog post here.  Practical tip: If the CBP officer is confused and cannot find the H-1B1 Singapore visa classification in the computer system, mention "HSC" to the officer; HSC stands for H1B1 for Singaporeans or Chileans.]

Misconception #2:  My H-1B1 visa sponsored by my H-1B1 employer is transferable between / usable for multiple employers

Correction to the misconception:  Your H-1B1 visa is employer-specific.  For example, if you have been sponsored by Employer A for an H-1B1 visa and have been admitted into the U.S. on that H-1B1 visa, you CANNOT simply then work for Employer B instead of Employer A (or work for Employer B in addition to Employer A).

Misconception #3:  I need to change my H-1B1 status to regular H-1B status in order to be eligible to apply for a green card

Correction to the misconception:  This may sound surprising to some (due to the non-dual-intent nature of the H-1B1), but technically it is not necessary for you to be on regular H-1B status to be eligible to apply for a green card (although being on regular H-1B status could be helpful).  Having said that, you need to be very careful in terms of strategizing the timing of commencing the green card process (and the components thereof) when you are still on H-1B1 status to avoid immigration problems down the road:

-- In the context of seeking a marriage-based green card when a Singaporean is on H-1B1 status, I have provided my cautionary notes in my previous blog post here.  

-- In the context of seeking an employment-based green card** when a Singaporean is on H-1B1 status, the following components of an employment-based green card case will negatively affect any subsequent H-1B1 renewals: (a) an I-140 immigrant petition filed on behalf of that Singaporean by an employer sponsoring that Singaporean for a green card, (b) when that Singaporean files an I-485 adjustment of status application to obtain a green card.  Thus, if you are on H-1B1 status it is important to only commence (a) and (b) after your H-1B1 has been renewed.

*Special note:  In the context of an employment-based green card, if you are a Singaporean citizen but was BORN in China or India, then generally you would want to change to H-1B status.  This is generally due to "priority date" issues for people born in China or India that significantly protracts the amount of time for such people to be permitted to file the I-485 adjustment of status application.

In conclusion, just as it is helpful for your long-term physical health for you to go for a "checkup" with an experienced doctor to identify and prevent health problems, it is likewise helpful for your long-term immigration status for you to go for a "checkup" with an experienced immigration attorney to see if you can avoid any issues arising from any inadvertent misconceptions about US immigration law and procedures, especially with regard to lesser-utilized visa classifications like the H-1B1 (Singapore).

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.  The views expressed here are the author's own.

I am on H-1B1 status and thinking of marrying my U.S. citizen partner. Can I apply for a green card?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

If you are currently working in the U.S. on H-1B1 (Singapore) status and are thinking of getting married to an American citizen, you may be wondering if (and how) you can apply for a green card based on the marriage.

First off, it is possible to apply for a green card while you are in the U.S. on H-1B1 status – the process of seeking a green card while you are in the U.S. is called “adjustment of status.”

However, due to the non-dual-intent nature of the H-1B1, here are some precautions to note:

1. If you are applying for an H-1B1 visa at the US Embassy in Singapore (whether it is for the first or subsequent time) outside the U.S., do NOT get officially engaged or married yet.

This precaution stems from the fact and rationale that being a fiancé or spouse of a U.S. citizen significantly demonstrates the intent to take up permanent residence in the U.S., which jeopardizes your H-1B1 visa application before the Embassy.

2. If possible, try NOT to get married shortly after you have entered the U.S. on your H-1B1 visa.  Consider getting married after 90 days from your admission into the U.S. on your H-1B1 visa.

This precaution stems from the Department of State’s “90-day rule” which provides that when a person engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, that person is presumed (the presumption can be rebutted) to have made a willful misrepresentation in seeking a visa or admission to the U.S.

The Department of State’s 90-day rule is arguably not a hard-and-fast rule for adjustment of status cases because this rule pertains to the Department of State (which oversees the U.S. embassies and consulates abroad).  Adjustment of status, on the other hand, is processed by the USCIS, which is within the purview of the Department of Homeland Security (not the Department of State). The USCIS Policy Manual has since omitted references to the Department of State’s 90-day rule.

Nevertheless, the current version of the USCIS Policy Manual still states as follows: "Although conduct inconsistent with one’s nonimmigrant status and prior representations does not automatically mean there is a misrepresentation, such evidence permits a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, especially if the violation or conduct occurred shortly after the U.S. Department of State (DOS) visa interview or after admission." (Emphasis added) (USCIS Policy Manual, Vol. 8, Pt. J, Chap. 3, as of Sep 8, 2022).

Therefore, although the timing of the marriage to a U.S. citizen after entry into the U.S. on the H-1B1 visa has not been a major issue from my experience so far, there is still a risk that questions will be raised at your adjustment of status interview if you get married too soon upon your entry into the U.S. on an H-1B1 visa.  

3. If an H-1B1 employer decides to extend your H-1B1 status in the U.S. with the USCIS using an I-129 petition, you may wish to wait for the I-129 petition to be approved first before filing for adjustment of status.

This is to help ensure that the I-129 petition mentioned in the topic sentence above goes smoothly (The current processing time for the I-129 petition for an H-1B1 is approximately 2 to 4 months).

This precaution stems from instances of USCIS indicating an intent to deny and/or actually denying I-129 petitions on behalf of an H-1B1 employee when an adjustment of status for the H-1B1 employee was filed during the pendency of the I-129 petition (although there also have been I-129 petition approvals by USCIS in similar instances as well).  

As you can see from the above, if you are on H-1B1 status and thinking of marrying your U.S. citizen partner, it is possible to apply for adjustment of status to obtain a marriage-based green card.  Nevertheless, due to the nature of the H-1B1, it will probably serve you well to consult with an experienced immigration lawyer who has dealt with adjustment of status cases for H-1B1 visa holders to help you find a suitable strategy forward. 

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.  The views expressed here are the author's own.

How to get an earlier H-1B1 visa interview in Singapore and the "Interview Waiver" process

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

In this blog post I will provide suggestions on how to get an earlier H-1B1 visa interview appointment date at the US Embassy in Singapore and explain how the "Interview Waiver" process in Singapore works for eligible Singaporeans.

How to Get an Earlier H-1B1 Visa Interview Appointment Date in Singapore

When booking your H-1B1 visa interview appointment, you might initially obtain a later appointment date than desired.  There are 2 ways to address this (the 2nd way is recommended in most situations):

1.  Request an expedited appointment. To do this, you have to first book a normal appointment at the usual CGI Federal website here before the system will allow you to request an expedited appointment.  The qualifying criteria are quite narrow, as can be shown on the US Embassy in Singapore's website here, and results are hit-or-miss as they are under the discretion of the consular officer.  Thus, the 2nd way of obtaining an earlier H-1B1 visa appointment described below has been generally more effective for Singaporeans.  

2.  Logging in daily to check for earlier interview appointment slots (Recommended in most situations).  After booking a normal appointment slot at the usual CGI Federal website here, even for a later-than-desired date, you can then log into the CGI Federal website on a daily basis to see if earlier appointment slots open up.  You have 4 "free tries" to re-schedule your appointment.  From my experience and from other Singaporeans' experiences, checking in daily for earlier appointments have been generally more effective than asking for an expedited interview in Singapore. 

Having said that, some Singaporeans may be eligible for the "Interview Waiver" process these days (see below).

The "Interview Waiver" process in Singapore

Since 2021, the US Embassy in Singapore has been allowing eligible Singaporeans to go through the "Interview Waiver" process (also known as the "Drop-Box" service) when applying for an H-1B1 visa.  

This process involves dropping off your visa application documents at the Aramex office located near Chinatown MRT station without having to attend an in-person interview at the Embassy.  If successful, you will be notified to return to the Aramex office to collect your passport.

You may be deemed eligible for an Interview Waiver in Singapore for your H-1B1 visa application based on one of the following grounds: 

• Ground (a) If you have a previous visa of the same visa type that you wish to renew, and your prior visa is still valid or has expired within the last 48 months*; this is typical for Singaporeans seeking a renewal of an H-1B1 visa [Note: this interview waiver ground is available until further notice], or

[*This does not apply if your prior visa of the same type was granted when you had a different nationality]

• Ground (b) If you are seeking a visa type for the first time and you have previously traveled to the US using ESTA or any US visa before (Note: this interview waiver ground is available only for a limited time that expires at the end of 2023)**, or

[**This does not apply if your prior visa or prior ESTA, as the case may be, for your previous travel to the US, was granted when you had a different nationality]

• Ground (c) If you are seeking a visa type for the first time and you were previously issued a visa in any classification unless the only prior issued visa was a B visa, AND are applying within 48 months of your most recent visa's expiration date [Note: this interview waiver ground is effective January 1, 2024; it will be reviewed by the Department of State annually and is available until further notice, per the Department of State announcement here]***

[***This does not apply if your prior visa, as the case may be, was granted when you had a different nationality]

After you have paid your visa application fee and logged into the CGI Federal website, if you are deemed by the system to be eligible for the Interview Waiver process, there will be a notification to this effect that will appear on your computer screen.****

[****The system is not intelligent enough to distinguish between you (the principal H-1B1 applicant) and your H-4 dependent spouse or child (if applicable).  For instance, if you as the principal H-1B1 applicant have been deemed eligible for an Interview Waiver, but if your H-4 dependent spouse or child did not previously hold a US visa in their passport(s) as a Singapore citizen, they will likely be required by the Embassy to book an in-person interview for themselves eventually.]  

The Interview Waiver process generally takes about 4-11 days to complete (counting from the date that you drop off your documents at the Aramex office) on average.

Finally, the Interview Waiver process is a discretionary procedure.  In other words, consular officers may still require in-person interviews on a case-by-case basis or because of local conditions, and there may come a time in the future when this procedure will become unavailable, even for the Singaporeans who have been deemed eligible for it now (for example, this process was unavailable during the previous Trump Administration).

Disclaimer:  This blog is for informational purposes only and does not constitute legal advice.

H-1B1 versus O-1

 

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here.  Feel free to connect with me on Linkedin.

[Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice]

I have been asked a few times about the difference between the H-1B1 versus the O-1 visa.  This is understandable as some Singaporeans may find that they could be eligible for either one.

Having extensively done both types of cases, here is a brief summary to compare them. 

Visa classification	H-1B1 Singaporean in a Specialty Occupation	O-1A Individual with extraordinary ability in the sciences, education, business or athletics	O-1B Individual with extraordinary ability in the arts, or Individual with extraordinary achievement in the motion picture or tv industry
Summary of key criteria	Singaporean must possess a relevant bachelor’s degree or higher for the job offered, and the job offered normally requires a relevant bachelor’s degree or higher	Receipt of a major, internationally recognized award, e.g. Nobel Prize,           OR   At least 3 of the following: (1) Nationally or internationally recognized awards (2) Membership in associations which require outstanding achievements (3) Major media about the applicant (4) Judging the work of others in the field (5) Original contributions of major significance (6) Authorship of scholarly articles (7) Employed in a critical or essential capacity for distinguished organizations (8) Has commanded or will command a high salary	Been nominated for, or has been the recipient of, significant national or international awards, e.g. Academy Award, an Emmy, a Grammy, or a Director's Guild Award   OR   At least 3 of the following: (1) Has and will perform as a lead or starring participant in distinguished productions or events (2) Major media about the applicant (3) Has and will perform in a lead, starring or critical role for distinguished organizations (4) Record of major commercial or critically acclaimed successes (5) Recognition of the applicant’s achievements from experts (in the form of testimonial letters) (6) Has commanded or will command a high salary
Is an “Advisory Opinion” required?	Not Applicable.	Yes.   An “advisory opinion” from an appropriate peer group  (including a labor organization) vouching for the applicant’s extraordinary ability or achievement is required, unless an appropriate peer group does not exist.	Same as O-1A
Is an “Agent Petitioner” permitted?	Not Applicable.   The H-1B1 employer sponsoring you must be an actual employer	Yes.   An O-1 petitioner can be an actual employer or an “agent”.  An “agent” allows for multiple employers if the “agent” is authorized by them to act as their agent/representative for O-1 purposes.	Same as O-1A
Is a USCIS Petition Approval required?	No	Yes.  A USCIS petition approval notice (also known as the I-797 approval notice) is required for an O-1 visa application at the U.S. Embassy in Singapore.	Same as O-1A

 

From my experience, it often takes a significantly longer time to prepare for an O-1 case compared to an H-1B1 case.  This is not surprising given that more evidence is generally required to show extraordinary ability or achievement, and an O-1 visa application requires a USCIS petition approval (whereas an H-1B1 visa application does not). 

 

In practice, Singaporeans can experience a tougher time at the U.S. Embassy in Singapore for an O-1 compared to an H-1B1 because it is generally harder to convince the consular officer in Singapore of having met the O-1 “extraordinary ability/achievement” evidentiary criteria even though USCIS has already approved the O-1 petition.

 

Having said that, if you have accumulated a level of expertise and achievement in your field and can document it in accordance with the appropriate O-1A/O-1B criteria, you should not be deterred from considering O-1 as a possible option.

 

The above comparison is but a snapshot. Thus, it would benefit you to consult with an experienced immigration attorney to learn more about the pros and cons of each.