A proposed change to U.S. immigration regulations that could significantly affect certain foreign workers following the loss of employment has cleared an important stage of federal review.
The Office of Management and Budget (OMB) has completed its review of a Department of Homeland Security (DHS) proposal that would eliminate the discretionary, maximum 60-day grace period currently available to certain nonimmigrant workers and their dependants when employment ends before their authorized period of stay expires.
The proposal has not yet taken effect. It must first be published in the Federal Register, followed by a public comment period and further review before any final regulation can become effective.
If finalized in its proposed form, foreign nationals whose employment ends before their authorized stay expires could lose their nonimmigrant status immediately, unless another immigration mechanism applies.
The specific provisions of the proposed rule will not be known until it is formally published in the Federal Register.
If the proposed rule is finalized, these workers and their dependants could face significantly less flexibility following an employment termination.
It was designed to reduce the immigration consequences of unexpected employment loss.
Where the grace period applies, eligible workers generally have up to 60 days, or until the expiration of their I-94, whichever comes first, to address their immigration situation.
The period may allow an affected worker to:
It is generally available once during each authorized petition validity period, although DHS retains discretion to shorten or deny the period.
Foreign nationals whose employment ends prematurely could generally be considered to have fallen out of status and may be required to leave the United States immediately, unless another legal mechanism provides protection.
U.S. Citizenship and Immigration Services (USCIS) has separate discretionary authority that could, in certain circumstances, allow a foreign national to overcome a status violation and pursue a change of status or change of employer from within the United States.
However, this separate discretion would not necessarily provide the same certainty or flexibility as the existing grace period.
Eliminating it could have significant practical consequences for businesses that rely on internationally mobile employees.
Employers may need to respond more quickly when:
The next step is publication of the proposed regulation in the Federal Register.
A public comment period will then generally remain open for 30 or 60 days.
The government will consider comments before deciding whether to finalize the regulation. The process typically takes several months, meaning the existing rules remain in place unless and until a final regulation takes effect.
However, businesses that employ workers in affected immigration categories may wish to prepare for a potentially more restrictive environment.
Practical steps could include:
The existing grace period was created to provide a degree of flexibility when employment ends unexpectedly. Removing that protection could require employers and employees to act much more quickly to preserve lawful immigration status.
For now, however, the proposal remains under consideration. The precise scope of any changes will not be known until the proposed rule is published, and the regulation would not take effect until the government completes the rulemaking process.
Employers should therefore continue following developments closely while preparing for the possibility of tighter timelines following employment termination.
The Office of Management and Budget (OMB) has completed its review of a Department of Homeland Security (DHS) proposal that would eliminate the discretionary, maximum 60-day grace period currently available to certain nonimmigrant workers and their dependants when employment ends before their authorized period of stay expires.
The proposal has not yet taken effect. It must first be published in the Federal Register, followed by a public comment period and further review before any final regulation can become effective.
What Is Being Proposed?
Under the proposal, DHS would eliminate the current discretionary grace period of up to 60 days that can protect certain nonimmigrant workers and their dependants following the end of the principal worker's employment.If finalized in its proposed form, foreign nationals whose employment ends before their authorized stay expires could lose their nonimmigrant status immediately, unless another immigration mechanism applies.
The specific provisions of the proposed rule will not be known until it is formally published in the Federal Register.
Which Visa Categories Could Be Affected?
The existing grace period applies to certain principal nonimmigrants in categories including:- E-1 Treaty Traders
- E-2 Treaty Investors
- E-3 Specialty Occupation Workers
- H-1B Specialty Occupation Workers
- H-1B1 Workers
- L-1 Intracompany Transferees
- O-1 Individuals with Extraordinary Ability or Achievement
- TN Professionals
If the proposed rule is finalized, these workers and their dependants could face significantly less flexibility following an employment termination.
How the Current 60-Day Grace Period Works
The current grace period was introduced through a regulation adopted in 2016 and implemented in early 2017.It was designed to reduce the immigration consequences of unexpected employment loss.
Where the grace period applies, eligible workers generally have up to 60 days, or until the expiration of their I-94, whichever comes first, to address their immigration situation.
The period may allow an affected worker to:
- Find another employer in the same immigration category.
- Apply to change status.
- Take steps toward another immigration option.
- Prepare for departure from the United States.
It is generally available once during each authorized petition validity period, although DHS retains discretion to shorten or deny the period.
What Could Happen if the Grace Period Is Eliminated?
If the proposal becomes final without significant changes, affected workers could face a much shorter timeframe to respond to the loss of employment.Foreign nationals whose employment ends prematurely could generally be considered to have fallen out of status and may be required to leave the United States immediately, unless another legal mechanism provides protection.
U.S. Citizenship and Immigration Services (USCIS) has separate discretionary authority that could, in certain circumstances, allow a foreign national to overcome a status violation and pursue a change of status or change of employer from within the United States.
However, this separate discretion would not necessarily provide the same certainty or flexibility as the existing grace period.
Why the Change Matters for Employers
The current grace period gives employers and foreign workers valuable time to manage unexpected employment changes.Eliminating it could have significant practical consequences for businesses that rely on internationally mobile employees.
Employers may need to respond more quickly when:
- An employee's position is eliminated.
- A worker resigns.
- A corporate restructuring affects sponsored employees.
- An employment relationship ends unexpectedly.
The Proposal Is Not Yet Final
The OMB review represents an important step in the regulatory process, but it does not mean the 60-day grace period has already been eliminated.The next step is publication of the proposed regulation in the Federal Register.
A public comment period will then generally remain open for 30 or 60 days.
The government will consider comments before deciding whether to finalize the regulation. The process typically takes several months, meaning the existing rules remain in place unless and until a final regulation takes effect.
What Employers and Foreign Workers Should Do Now
Because the proposal is not yet final, employers and foreign workers should not assume that the existing grace period has already changed.However, businesses that employ workers in affected immigration categories may wish to prepare for a potentially more restrictive environment.
Practical steps could include:
- Reviewing procedures for handling employment terminations involving foreign workers.
- Identifying employees whose immigration status could be affected by an unexpected loss of employment.
- Coordinating closely between human resources and immigration teams.
- Assessing alternative immigration options where appropriate.
- Monitoring publication of the proposed regulation and subsequent developments.
Outlook
The proposed elimination of the 60-day grace period could represent a significant change for certain foreign workers and their employers.The existing grace period was created to provide a degree of flexibility when employment ends unexpectedly. Removing that protection could require employers and employees to act much more quickly to preserve lawful immigration status.
For now, however, the proposal remains under consideration. The precise scope of any changes will not be known until the proposed rule is published, and the regulation would not take effect until the government completes the rulemaking process.
Employers should therefore continue following developments closely while preparing for the possibility of tighter timelines following employment termination.
Pros and Cons Summary
Pros
- Could give the government greater control over nonimmigrant status following employment termination.
- May encourage employers and foreign workers to address immigration changes more quickly.
- Provides an opportunity for the government to reconsider how employment-based immigration status is managed.
Cons
- Could eliminate up to 60 days of flexibility for affected foreign workers.
- Workers who lose employment could face an immediate need to depart the United States.
- Dependants could also be affected by the loss of the principal worker's status.
- Employers may have significantly less time to find alternative immigration solutions.
- Workforce planning and termination procedures could become more complex.
- The separate discretionary authority available to immigration authorities may not provide the same certainty as the existing grace period.