The U.S. Department of Homeland Security on Friday proposed a rule that would eliminate the 60-day grace period that allows H-1B and similar nonimmigrant visa holders to remain in the U.S. after they lose their jobs.
That period of time allows visa holders and their families to find new employment while retaining legal status in the U.S., ensuring more ease of mobility between jobs for highly-skilled workers.
The 60-day grace period has existed since 2016. In its Notice of Proposed Rulemaking, DHS said the move is an effort to reduce an administrative burden, “as the process of determining when the up to 60-day grace period may apply, reviewing the information submitted, and determining whether to shorten or eliminate the grace period may be time consuming and complex for the agency and confusing or unpredictable for the petitioner, alien and the alien’s dependents.”
The agency also said the grace period is “inconsistent with the purpose for which Congress created the relevant nonimmigrant classifications” and that “restoring the expectation that aliens depart the United States upon cessation of the employment or activity upon which the alien’s status was based, would better promote program integrity and be more consistent with statutory purpose.”
DHS previously observed a 10-day grace period, but a return to that would not cover all affected workers, per an analysis from law firm Reddy Neumann Brown, which specializes in immigration law.
H-1B status is valid up to three years and extendable up to another 3 years, for a total period of admission of 6 years, according to an agency guidance. In the rulemaking, DHS said the 10-day grace period only would apply “after the validity period ends” for a visa.
In other words, “[t]he company that lays off an H-1B employee two years into a three-year approval leaves that employee with no cushion at all,” Steven Brown, partner at Reddy Neumann Brown, wrote.
The proposed rule leaves a number of questions unanswered, Brown noted, such as the status of H-1B portability, which would remain part of the visa program despite this change.
Companies that file applications for H-1B visa holders “would remain liable for the reasonable cost of return transportation abroad” for any individuals dismissed prior to their authorization period, Brown said.
Interested parties can comment on the rule for 60 days, until Nov. 10.