The U.S. Department of Homeland Security will soon propose a rule to eliminate the 60-day grace period that H-1B and similar nonimmigrant visa holders receive if their employment ends before the expiration date of their visas.
The rule was submitted to the Office of Management and Budget on Aug. 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.
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,” per a post from law firm Ogletree Deakins.
“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, employers must file a labor condition application to the U.S. Department of Labor — and these days, that process takes upward of a week, Bayley explained. Without a grace period, employers would have a much harder time snapping up H-1B visa holders who may be applying for positions after a job loss.
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 Sept. 20. That fee, should it survive its ongoing litigation, would apply once again should an employer file a new application for an H-1B worker, Bayley said.
As of now, few details are known without the rule’s 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, 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, she said.