USCIS Plans to Abolish 60-Day Grace Period for Certain Nonimmigrant Workers

On Sept. 11, the U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking that, if adopted, would eliminate the 60-day grace period currently granted to most nonimmigrant workers in H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1 or TN status who abruptly lose their positions. The grace period has been in place since 2017 and allows nonimmigrants who lose their jobs to look for other positions in the U.S. or wrap up their affairs and depart.

According to USCIS, eliminating the grace period would make the applicable regulations more consistent with statutes that base work authorization and nonimmigrant status on being actively employed. The agency also says the proposal would reduce administrative burdens and costs related to calculation of the grace period and determining whether a particular foreign national is entitled to the grace period.

On the other hand, USCIS acknowledges that the proposal would result in an increase in removal proceedings and the associated burden on the already-overwhelmed Immigration Courts.

USCIS Extended Processing Times

Filing fees for H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1 and TN petitions filed with USCIS have increased more than 80% since 2017. In addition to increasing filing fees for these petitions, USCIS has extended processing times for premium processing from 15 calendar days to 15 business days. (Premium processing allows adjudication of a nonimmigrant petition to be expedited for a fee of $2,965 per petition.) In other words, the financial cost and time burden associated with administering the grace period should be within USCIS’s budget.

U.S. employers may also face challenges. The 60-day grace period allows U.S. employers to hire, file change-of-employer petitions for and ultimately lawfully employ these individuals. With the grace period, an employer can onboard a new employee already in the U.S. without requiring that the candidate leave the country and reenter, streamlining and expediting the process.

If the 60-day grace period is eliminated, U.S. employers’ hiring and onboarding processes could be significantly delayed. If foreign employees are required to leave the country after termination or separation, they would need to interview from abroad, potentially apply for and receive a new nonimmigrant visa stamp, and then reenter the U.S. upon approval of the new employer’s nonimmigrant petition.

This delay in the onboarding process could turn what now takes about six weeks to complete into a months-long process. U.S. employers would have to weigh the costs and benefits of hiring these employees, given the time to bring them onboard. If the employers determine that the timing will not work, the country could lose qualified, contributing foreign nationals, and employers may lose business and growth opportunities. In other words, there could be both a “brain drain” in the U.S. and a financial drain on the economy. The negative impact could be greatest on employers in the technology and science sectors of the U.S. economy.

Although USCIS has cited consistency with other statutes governing nonimmigrant status and employment, some programs do permit grace periods to certain foreign nationals, allowing them to remain in the U.S.

• F-1 and J-1 students are granted at least 30 days after completion of their programs to conclude their affairs or pursue other opportunities.
• Individuals in removal proceedings can be granted up to 120 days of voluntary departure time to conclude their affairs while having no immigration status.

Comments are being accepted through Nov. 10.

Perhaps these examples could persuade USCIS to retain the 60-day grace period that has been in effect for almost 10 years. That is not likely, but it is possible.