/>iReports indicate that some H-1B visa holders who are within their 60-day grace period have received Notices to Appear (NTAs) in immigration court. Previously, when a nonimmigrant worker, such as an H-1B visa holder, ended employment—either voluntarily or nonvoluntarily—a 60-day grace period was available for remaining in the United States and taking steps to change or extend their status. Such actions could include filing for a change of nonimmigrant status, filing an application for adjustment of status, applying for a compelling circumstances employment authorization document, or submitting a nonfrivolous petition to change employers. Prior USCIS guidance, now archived, outlined these options and provided a question-and-answer section.
The 60-day grace period is established under regulations at 8 CFR 214.1(l)(2), which allow a discretionary grace period for workers in certain classifications, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN (and their dependents). These regulations permit individuals to be considered as maintaining status in the same classification after employment ends, for up to 60 consecutive calendar days or until the end of the authorized nonimmigrant validity period, whichever is shorter. The intent of the grace period is to allow nonimmigrant workers to preserve their period of authorized stay in the United States if they take certain qualifying actions as discussed above. The regulation states:
An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.
Notably, the full text of the regulation states, “DHS may eliminate or shorten this 60-day period as a matter of discretion.” Thus, it appears that USCIS may be exercising discretion to eliminate the 60-day grace period in some cases. Since the regulation was published in 2016, there have not been prior widespread changes to the duration of the grace period. As of the date of this post, there has been no announcement from USCIS or DHS regarding changes to the implementation of the 60-day grace period.
An NTA is a charging document DHS issues to individuals believed to be present in the United States in violation of immigration laws and who may be subject to removal. View a sample NTA. For example, individuals who remain in the U.S. beyond their period of authorized stay may be issued an NTA. The NTA initiates removal proceedings by notifying the individual and, once filed with an immigration court, begins the formal process. Additional information about NTAs can be found on the Immigration and Customs Enforcement website.
