DHS Eyes Elimination of 60-Day Grace Period for H-1B Visa Holders
The U.S. Department of Homeland Security (DHS) has submitted a proposed rule to the Office of Management and Budget (OMB) that would eliminate the 60-day grace period currently granted to H-1B and similar nonimmigrant visa holders whose employment ends before their visa expiration. If enacted, affected workers could face immediate departure unless U.S. Citizenship and Immigration Services (USCIS) exercises favorable discretion. Legal experts note significant employer challenges, including longer labor condition application processing times and potential reimposition of a $100,000 fee. The rule has not yet been published in the Federal Register, and the regulatory process, including public comment periods, may delay any final change.
The U.S. Department of Homeland Security (DHS) is set to propose a rule that would remove the 60-day grace period currently available to H-1B and similar nonimmigrant visa holders when their employment terminates before the visa's expiration date.
The proposed rule was submitted to the Office of Management and Budget (OMB) on Aug. 6, but it has not yet been published in the Federal Register. White House officials have not indicated when the rule might be approved for publication.
If the 60-day grace period is eliminated, H-1B visa holders who lose their jobs could be required to leave the United States immediately. According to a post from law firm Ogletree Deakins, such individuals “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.”
“It’s going to be really difficult” for employers if the 60-day grace period is removed, Maxine Bayley, a partner at Duane Morris who practices immigration law, told HR Dive.
As part of the H-1B petition process, employers must file a labor condition application with the U.S. Department of Labor. Bayley explained that this process currently takes upward of a week. Without a grace period, employers would face significantly greater challenges in hiring H-1B visa holders who may be applying for positions after a job loss.
Employers are also still dealing with the presidential proclamation that requires all H-1B visa applications to be accompanied by a $100,000 fee. That proclamation has been enjoined by federal courts and is currently set to sunset on Sept. 20. Bayley noted that if the fee survives its ongoing litigation, it would apply again should an employer file a new application for an H-1B worker.
Few details are known without the rule’s full text. However, prior to the 60-day grace period rule — which has been in effect since 2016 — a 10-day grace period existed, Bayley said. The new rule could potentially revert to that shorter window.
For now, Bayley said, employers can continue to hire “business as usual.” Because the new rule must go through the standard regulatory process, including several public comment periods, it may be some time before employers see any actual change take effect, she added.