Employment & Labor Insider

On Friday, the U.S. Citizenship and Immigration Services 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 United States or to conclude their affairs.

According to the USCIS, elimination of the grace period would make the applicable regulations more consistent with statutes that base work authorization on being actively employed. The agency also says that 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, the USCIS acknowledges that the proposal would result in an increase in removal proceedings, with the associated burden on the already-overwhelmed Immigration Courts.

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 percent since 2017. In other words, the financial cost associated with administering the grace period should be within the USCIS budget.

Comments on the proposal are being accepted through November 10.

Although not likely, we hope that in the end the USCIS will decide to leave the grace period in place. Interestingly, there are examples of permissible grace periods granted to certain foreign nationals that allow them to remain in the United States. These include the following:

• F-1 and J-1 students are granted 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.

We encourage you to submit comments opposing this proposed change. If you have questions or need assistance in drafting or submitting a comment, please feel free to contact any member of Constangy’s Immigration Practice Group.