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Quick Hits
- DHS has proposed a rule to eliminate the sixty-day grace period afforded to certain nonimmigrants, such as E, H-1B, H-1B1, L-1, and TN visa holders and their dependents.
- The full text of the proposed rule has not yet been published, and its exact details remain unknown.
- The rule is undergoing review by OMB before being published in the Federal Register for notice and comment.
The sixty-day grace period was implemented in 2016 by regulation and formally went into effect in 2017. Prior to this regulation, no such grace period existed. The regulation creating the sixty-day grace period permits individuals in certain nonimmigrant visa status (e.g., E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN) and their dependents to remain in a period of authorized stay for up to sixty days after their employment ends or until their I-94 record expires, whichever is earlier. Within the sixty days, they must either depart the United States or apply for a change of employer, change of status, adjustment of status, or a compelling circumstances employment authorization document (EAD). Individuals are eligible for one sixty-day grace period per petition validity period.
If the proposed rule is implemented, individuals whose employment ends before their petition expiration date would no longer be permitted to remain in the United States in a period of authorized stay. Instead, they would be required to depart the United States immediately and would likely be unable to change status or change employers unless USCIS authorizes the change through an exercise of favorable discretion.
The sixty-day grace period will remain in effect while the rule continues through the rulemaking process.
Next Steps
Once the OMB completes its review, the proposed rule will be published in the Federal Register and will be open to public comment for a period of thirty to sixty days. Following this period, there is a possibility that the agency may withdraw or abandon the proposal based on public comment. If the rule proceeds to final rulemaking, it will likely take several months to be finalized and take effect.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will post updates on the Immigration blog as additional information becomes available.
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