On September 10, the Department of Homeland Security sent a proposed rule to the Federal Register’s Public Inspection desk that would eliminate the up to 60-day discretionary grace period currently available to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants and their dependents, following the cessation of the employment or activity on which their status is based.
DHS created the grace period by regulation in 2016, and it took effect in January 2017. The agency explained at the time that it would allow workers whose employment ceased before the end of the petition validity period to more readily pursue new employment, and would allow U.S. employers to more easily facilitate changes in employment for existing and newly recruited nonimmigrant workers.
Under the proposal, workers in these categories and their dependents would no longer receive a grace period when the principal’s employment ends. Instead, they would be considered to have failed to maintain status the day after the qualifying employment or activity ceases, and would be expected to depart the United States immediately unless otherwise authorized to remain. Currently, they may remain in status for up to 60 days, or until the expiration date on the principal’s Form I-94 if that date comes first, and may use that time to seek new sponsorship, apply for a change of status, or prepare to depart.
Explaining the proposed change, DHS states that the grace period is not required by statute and disconnects a worker’s lawful status from the basis of eligibility for these classifications. The agency also cites the administrative burden of determining whether the grace period applies to a given filing and whether to shorten or eliminate it. The proposed rule will be officially published in the Federal Register on September 11 and will be open for public comment for 60 days. CUPA-HR is reviewing the proposal in detail and will provide further analysis in the coming weeks.