DHS Proposes Immigration Rule to End 60-Day H-1B Grace Period

Trump officials propose ending the up to 60-day grace period that allows H-1B visa holders to find other employment if they lose a job. The proposed immigration rule, which also applies to the E, L-1, O-1 and TN visa categories, reflects an administration effort to restrict immigration and further reduce the labor supply, despite warnings that these policies will likely have negative economic consequences. If enacted, the measure would make working in H-1B status more precarious and tie H-1B professionals more closely to their current employers. It may also discourage highly skilled individuals from choosing to work in the United States.

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{snip} The action would overturn a 2016 final rule that established the grace period along with other measures to implement legislation, including the American Competitiveness in the 21st Century Act.

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Analysts and attorneys consider DHS’s assertion that ending the 60-day grace period would ease the administrative burden misleading or mistaken. Under “reducing administrative burden,” DHS states, “The process of assessing whether a grace period is warranted; and then of adjudicating the request and determining start and end dates of a grace period may be time consuming and complex for the agency and confusing or unpredictable for petitioners, the alien, and the alien’s dependents.” This does not appear to be an accurate statement.

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DHS asserts that by eliminating the 60-day grace period and reducing labor mobility, it is bringing federal regulations closer to Congress’s intent. However, the Cornell Law School report notes that in the American Competitiveness in the 21st Century Act, Congress passed a provision that allows H-1B visa holders to begin working for a new employer without waiting for immigration services to approve the new application. Ending the 60-day grace period violates at least the spirit of that provision by forcing any H-1B visa holder who loses employment to leave the country almost immediately unless they receive a change-of-status approval from USCIS.

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