By The U.S. Citizenship and Immigration Services published a Notice of Proposed Rulemaking on Sept. 11 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, according to HRMorning. The grace period has been in place since 2017.
The proposal, reported by HRMorning and authored by Sara Herbek, senior counsel at law firm Constangy, Brooks, Smith & Prophete, would affect U.S. employers, foreign workers in those visa categories, F-1 and J-1 students, and individuals in removal proceedings. Comments are being accepted through Nov. 10.
Why USCIS wants the change
USCIS says eliminating the grace period would make applicable regulations more consistent with statutes that base work authorization and nonimmigrant status on being actively employed. The agency also argues the proposal would reduce administrative burdens and costs related to calculating the grace period and determining whether a particular foreign national is entitled to it.
USCIS acknowledges the proposal would result in an increase in removal proceedings and associated burden on the already-overwhelmed Immigration Courts. The agency has not framed the change as a cost-saving measure for employers, but rather as a regulatory alignment effort.
What the grace period does in practice
The 60-day grace period allows U.S. employers to hire, file change-of-employer petitions for, and lawfully employ individuals who have lost their previous positions. Without it, hiring and onboarding could be significantly delayed.
If foreign employees must leave the country after termination or separation, they would need to interview from abroad, potentially apply for and receive a new nonimmigrant visa stamp, and then reenter the U.S. upon approval of the new employer’s nonimmigrant petition. Onboarding could turn from about six weeks into a months-long process.
The negative impact could be greatest on employers in the technology and science sectors. HRMorning reports there could be both a brain drain in the U.S. and a financial drain on the economy.
How this compares to other grace periods
The proposal does not affect all grace periods equally. F-1 and J-1 students are granted at least 30 days after completion of their programs, and individuals in removal proceedings can be granted up to 120 days of voluntary departure. These provisions are separate from the 60-day employment-based grace period under review.
The filing fees for H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1, and TN petitions have increased more than 80% since 2017. The premium processing fee is $2,965 per petition, and premium processing has been extended from 15 calendar days to 15 business days. These costs compound the operational burden if employers must restart petitions from abroad.
What HR and payroll teams should do now
HR teams with affected employees should identify which workers are in H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1, or TN status and assess their current employment stability. The comment period closes Nov. 10, so employers that want to weigh in have a limited window.
Payroll teams should prepare for the possibility that terminated foreign workers may need to be removed from payroll immediately rather than during a 60-day transition period. This affects final pay calculations, tax withholding, and benefits continuation timing.
The proposal is not final. HRMorning notes it is not likely, but possible, that examples of other programs with grace periods could persuade USCIS to retain the 60-day grace period. Employers should monitor the rulemaking docket and confirm any changes with immigration counsel before altering current practices.
Sources: HRMorning
Photo: US Navy 060822-N-0555B-085 Sailors awaiting the final step on their road to natu by U.S. Navy photo by Mass Communication Specialist 3rd Class C, Public domain
