Work Visa Grace Period Could Be Eliminated

The Work Visa Grace Period that allows foreign workers who lose their jobs to remain in the United States while seeking new employment or changing their immigration status could be eliminated for a broad range of employment-based visa holders.

The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) are proposing to eliminate the maximum 60-day grace period currently available to H-1B specialty occupation workers after their employment ends. The proposed change would also apply to several other major employment-related visa categories, including E-1 treaty traders, E-2 treaty investors, L-1 intracompany transferees and O-1 individuals with extraordinary ability.

The proposed rule is scheduled to be officially published in the Federal Register on Sept. 11, followed by a 60-day public comment period.

Work Visa Grace Period Currently Provides Up to 60 Days

Under regulations in effect since 2017, eligible visa holders whose employment ends may generally maintain their status for up to 60 consecutive days or until the end of their authorized stay, whichever period is shorter.

During that time, workers have been able to seek a new employer willing to sponsor them and file an employment-based petition or pursue a change to another lawful immigration status.

The proposed rule would eliminate that grace period entirely.

If a worker has no other lawful basis to remain in the country, the end of the employment relationship underlying the visa could require the worker to leave the United States immediately.

H-1B, L-1 and E-2 Workers Could Face Major Impact

The change could have significant consequences for H-1B workers as well as L-1 employees transferred to the United States by multinational companies and E-2 employees working for treaty-investor businesses.

The potential impact is particularly significant because layoffs in the United States can occur with little or no advance notice. Under the current system, workers who unexpectedly lose their jobs have a limited window to find another sponsor and take steps to maintain lawful status.

If the proposal takes effect, foreign workers may effectively need to secure or prepare a new employment arrangement before leaving their existing jobs.

Immigration attorney Kwanwoo Chun warned that remaining in the United States after employment ends could create immigration status problems under the proposed system.

“If a worker remains in the United States after employment ends, that person could fall out of lawful status,” Chun said. “Such a record could also potentially create disadvantages in future visa applications or when seeking admission to the United States.”

Dependents Could Also Be Affected

The proposed change would extend beyond the workers themselves.

Under the current rules, the 60-day grace period can also protect qualifying dependents, including spouses and unmarried children under age 21, whose immigration status is tied to the principal visa holder.

As a result, eliminating the grace period could require entire families to make immigration and relocation decisions immediately following the loss of the principal visa holder’s job.

The proposal will undergo a 60-day public comment period after publication in the Federal Register before the federal government moves toward issuing a final rule.