The Department of Homeland Security (DHS) intends to propose a new rule that would eliminate the 60-day grace period currently granted to noncitizen workers following the termination of sponsored employment. If finalized, this regulatory change will significantly compress the timeline for affected visa holders to maintain lawful status or arrange for departure from the United States.
Key Takeaways
- Scope of the Proposed Rule: Eliminates the automatic post-termination grace period established in 2017 for nonimmigrant workers and their dependents.
- Impacted Classifications: Applies to H-1B, H-1B1, L-1, O-1, TN, E-1, E-2, and E-3 visa holders.
Background and Legal Context
Under current regulations, when an employer terminates a sponsored nonimmigrant worker prior to the expiration of their authorized stay, the individual generally receives a grace period of up to 60 consecutive days (or until the end of the authorized validity period, whichever is shorter). During this window, the worker and their dependent family members may:
- Secure new employment and submit a change-of-employer petition.
- File an application to change to another nonimmigrant classification.
- Make necessary personal, academic, or professional arrangements to depart the United States without accruing unlawful presence.
The proposed elimination of this 60-day window would remove a critical buffer that allows individuals and families time to navigate sudden job loss, address spousal employment changes, or adjust children’s schooling arrangements.
Key Consequences for Affected Employees
If the proposed rule is published and finalized in its current form:
- Loss of Immediate In-Country Remedies: Individuals who experience early termination will face severe constraints on their ability to switch employers or change status while remaining in the United States.
- Mandatory Consular Processing: Falling out of status upon termination may require the worker and their family members to depart the U.S. immediately and apply for new status or visa processing through a U.S. embassy or consular post abroad.
- Severe Immigration Risks: Accruing period of stay without lawful status carries significant consequences, including potential removal proceedings, detention, or future re-entry bars (such as the 3-year or 10-year bars triggered by accumulating more than 180 days of unlawful presence).
Implications and Recommended Actions for Employers
The removal of the 60-day grace period introduces operational and compliance considerations for corporate immigration programs:
- Termination Planning and Advance Notice: Where practical, employers should evaluate providing advance notice of termination to noncitizen employees to afford them adequate time to seek alternative sponsorship or plan an orderly transition.
- Return Transportation Costs: For H-1B workers, employers are reminded of their legal obligation under federal regulations to offer to pay the reasonable cost of the employee’s return transportation to their last place of foreign residence in cases of employer-initiated termination.
- Policy Review: Corporate HR and legal teams should audit current severance, offboarding, and termination procedures to ensure alignment with the heightened urgency noncitizen workers will face.
The official text of the proposed rule is not yet publicly available. The Office of Management and Budget (OMB) is reviewing the draft before its publication in the Federal Register. Once published, the rule is expected to undergo a public notice and comment period, during which stakeholders may submit feedback before a final rule is issued.
INLG will continue to monitor all developments regarding this rule and will provide updates as new information becomes available. For guidance on offboarding strategies, compliance obligations, or employee visa support, please reach out directly to the firm.