The US Department of Homeland Security is preparing a proposal that could end the 60-day grace period currently available to H-1B and certain other nonimmigrant visa holders who lose their jobs before their visas expire.
The proposed rule was submitted to the Office of Management and Budget on August 6 for review. It has not yet been published in the Federal Register, and the White House has not indicated when the proposal could be cleared for publication.
Under the existing system, eligible H-1B workers whose employment ends can generally remain in the US for up to 60 days, or until their authorised stay expires, whichever comes first, giving them time to find another employer or explore other immigration options.
If the grace period is scrapped, affected workers could face pressure to leave the US soon after losing their jobs. According to immigration law firm Ogletree Deakins, they “would likely be unable to change status or change employers unless [U.S. Citizenship and Immigration Services] authorizes the change through an exercise of favorable discretion.”
The potential change could also create difficulties for employers seeking to hire H-1B workers who have recently lost their jobs.
“It’s going to be really difficult” for employers if the 60-day grace period is removed, Maxine Bayley, an immigration law partner at Duane Morris, told HR Dive.
Bayley explained that employers sponsoring H-1B workers must submit a labour condition application to the US Department of Labor, a process that can currently take more than a week.
Without the grace period, companies could struggle to complete the required immigration procedures before a worker’s authorised stay ends, potentially making it harder to quickly hire H-1B professionals who become unemployed.
The proposed change comes amid wider uncertainty surrounding H-1B immigration policy. Employers are also dealing with a presidential proclamation that introduced a $100,000 fee for H-1B applications. Federal courts have blocked implementation of the fee for now, while the measure is currently scheduled to expire on September 20.
Bayley said that if the fee ultimately survives the legal challenges, it could become relevant again when employers submit new H-1B applications for affected workers.
Details of the proposed rule remain limited because its full text has not yet been released.
The current 60-day grace period was introduced in 2016. Before then, H-1B workers generally had a 10-day grace period, and Bayley said the proposed regulation could potentially return the system to that earlier arrangement.
For now, employers can continue hiring H-1B workers under the existing rules.
Bayley said businesses can operate “business as usual” because the proposed regulation would still have to undergo the standard federal rulemaking process, including opportunities for public comment, before any changes could take effect.
