DHS to Propose End of 60-Day Grace Period for H-1B Visa Holders

The U.S. Department of Homeland Security plans to eliminate the 60-day grace period for H-1B and similar nonimmigrant visa holders who lose their jobs before the expiration date of their visas.

The proposed rule, submitted to the Office of Management and Budget on August 6, has yet to be published in the Federal Register, with no indication from White House officials when it will be approved for publication.

According to law firm Ogletree Deakins, if the current 60-day grace period is eliminated, H-1B visa holders who lose their jobs may be required to leave the country immediately and 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.

Employers may face difficulties if the 60-day grace period is removed, as they would have a harder time snapping up H-1B visa holders who may be applying for positions after a job loss. This is because the process of filing a labor condition application to the U.S. Department of Labor can take up to a week, according to Maxine Bayley, a partner at Duane Morris who practices immigration law.

Additionally, employers are still contending with the presidential proclamation that requires all H-1B visa applications to be accompanied with a $100,000 fee, though that proclamation has since been enjoined by federal courts and is currently set to sunset on September 20.

Prior to the 60-day grace period rule, which has been in effect since 2016, a 10-day grace period existed, Bayley said, which the new rule could revert to.

For now, Bayley said, employers can continue to hire "business as usual." As the new rule will be required to go through the usual regulatory process, including several public comment periods, it may be some time before employers see any actual change take place.

Proposed Rule Details

| Grace Period | 60 days | 10 days (possible) |

Impact on Employers

Employers may face difficulties if the 60-day grace period is removed, as they would have a harder time snapping up H-1B visa holders who may be applying for positions after a job loss.

Timeline

The proposed rule has been submitted to the Office of Management and Budget on August 6, but it has yet to be published in the Federal Register, with no indication from White House officials when it will be approved for publication.

Regulatory Process

The new rule will be required to go through the usual regulatory process, including several public comment periods, before it can take effect.

The process of filing a labor condition application to the U.S. Department of Labor can take up to a week, according to Maxine Bayley, a partner at Duane Morris who practices immigration law.

As of now, few details are known without the rule's text. However, employers can continue to hire "business as usual" for now, as Bayley said.