Legislative lowdown: DHS seeks to eliminate 60-day grace period for certain visa holders

The Department of Homeland Security (DHS) officially moved to end the 60-day grace period that allows certain visa holders, including those with H-1B status, to remain in the US legally while they look for a new job.

The grace period, which is discretionary, has been in place since 2017. It was issued by DHS during President Barack Obama’s last term in office.

In a notice of proposed rulemaking issued on Sept. 11, DHS said the proposal would restore “a direct relationship between an alien’s nonimmigrant status and the specific employment or activity that formed the basis of his or her admission or grant of status in the United States.” The agency also argued the proposed rule would reduce “administrative burden.”

How DHS’s rule would affect H-1B, other visa holders. If the proposed rule is finalized, foreign-born workers on certain visas would lose their status the day after their employment ends, unless they found a new sponsor or another authorization that allowed them to remain legally in the US.

The policy would affect not only H-1B visa holders, but also those with E-1, E-2, E-3, L-1, O-1, or TN status. These visas are all considered “nonimmigrant” classifications, and are typically extended to workers who are in the US for a job, with the help of a petitioning employer. If finalized, it would mean both covered visa holders and their families would have a harder time staying in the US in the event of a layoff, for example.

While DHS previously observed a 10-day grace period for workers on these visas, that grace period wouldn’t apply to visa holders whose employment ended earlier than anticipated under this rule.

What HR teams should consider. This proposed rule could further complicate workforce planning for employers that rely heavily on H-1B and other foreign-born talent. Employers may have a harder time recruiting workers on these visas, attorneys with law firm Alston & Bird suggested, given the elimination of the 60-day grace period would upend timelines.

“Employees who lose their jobs may need to depart the United States before a prospective employer can complete the sponsorship process, potentially delaying start dates and [disrupting] hiring timelines,” they wrote in a blog post.

This proposal is the latest action by President Donald Trump’s administration that seeks to dismantle an immigration system employers have long relied on to source scarce talent. Among the policies that have specifically targeted the H-1B program are a $100,000 petition fee that was subsequently blocked by a federal court, and a final rule issued by DHS in August that will make more employers pay fees toward a biometric entry-exit system.

For now, the 60-day grace period is still in effect. DHS is accepting public comments on the proposal through November 10.