The Department of Homeland Security (DHS) has published a proposed rule eliminating the 60-day grace period currently available to certain employment-based nonimmigrant workers after their employment ends.
If finalized as proposed, the rule would affect foreign nationals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, as well as their dependents.
It is important to note the proposed rule is not currently in effect as it is subject to a 60-day public comment period. DHS must review and respond to comments before issuing any final rule, which would then need to be published with an effective date.
The existing 60-day grace period remains available under current regulations while the rulemaking process continues.
What is the 60-day grace period?
Current regulations generally allow certain employment-based nonimmigrants whose employment ends to remain in the United States for up to 60 consecutive days or until the end of their authorized validity period, whichever is shorter.
The grace period applies following termination of employment and was established in 2017 to provide greater flexibility and job portability for certain nonimmigrant workers.
During that period, an eligible nonimmigrant may be able to pursue another option to remain lawfully in the United States, such as having a new employer file a petition on their behalf, applying to change to another nonimmigrant classification, or filing an application to adjust status, if eligible. The grace period is particularly beneficial for eligible H-1B workers who may generally begin working for a new employer once a properly filed H-1B change-of-employer petition is received by U.S. Citizenship and Immigration Services (USCIS).
If the nonimmigrant does not file such an application during the 60-day grace period, they must depart the United States. The grace period nevertheless provides valuable time to wrap up personal and professional affairs and make arrangements for an orderly departure, generally without accruing unlawful status or failing to maintain status.
What would the proposed rule change?
DHS is proposing to remove the regulation that provides the discretionary grace period entirely.
Under the proposed framework, affected nonimmigrants generally would be considered to have failed to maintain their status beginning the day after the employment or activity underlying their status ends. They and their dependents would be expected to depart the United States immediately unless they are otherwise authorized to lawfully remain in the country.
The change could substantially reduce the amount of time nonimmigrants have to respond to an unexpected termination of employment.
For example, an H-1B worker who loses their job currently may have up to 60 days to find a new employer willing to sponsor them and have that employer file a change-of-employer petition. If the proposal is finalized as written, that window would no longer exist and the H-1B worker would need to depart the United States immediately following the termination date; any time in between would be deemed unlawful status under the new regulation.
What could the proposal mean for employers and foreign nationals?
If finalized, the proposal could have significant consequences for both employers and nonimmigrant workers.
Nonimmigrants in affected classifications will have substantially less flexibility following layoffs, terminations or other employment changes. Securing a new position, completing the recruitment process and preparing the necessary immigration filing can take time, and the current grace period provides an important window in which to complete those steps.
Employers seeking to recruit nonimmigrants who recently lost their jobs will also face challenges. In some cases, a prospective employee may need to leave the United States before a new employer can complete the immigration process necessary to bring them onboard, which, in and of itself, currently has its own challenges with the uncertainty of visa appointments, travel/visa restrictions and bans, and new fees.
The proposed change makes advanced planning more important when an employer knows that an employment relationship will end. Employers and nonimmigrants should consider consulting with immigration counsel earlier when planning terminations, workforce reductions, job changes or other employment transitions involving workers in affected classifications.
What happens next?
The 60-day grace period has not been eliminated at this time. DHS must complete the rulemaking process before the proposed change could take effect.
Employers and nonimmigrant employees should therefore continue to follow the regulations currently in place while closely monitoring the proposal.
In the interim, employers may want to review with immigration counsel their procedures for employment changes involving affected nonimmigrant workers. Nonimmigrant workers facing a potential termination or other change in employment should also speak with experienced immigration counsel to understand the options that may be available based on their individual circumstances.
The attorneys at Garfinkel Immigration Law Firm continue to monitor the proposed rule closely and will provide updates as additional information becomes available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
