The attorneys at Garfinkel Immigration Law Firm have become aware that some H-1B visa holders are receiving Notices to Appear (NTA) in immigration court during their 60-day grace period.
U.S. Citizenship and Immigration Services (USCIS) issued a policy memo on February 28, 2025, which is used to guide the issuance of Notices to Appear (NTA) by all USCIS employees in cases involving inadmissible and removable noncitizens.
Per the memo, USCIS is no longer exempting classes or categories of removable noncitizens from potential enforcement, which includes referring cases to ICE and the issuance of NTAs. The memo guides USCIS officers on issuing NTAs in circumstances required by statute or regulation, for noncitizens not lawfully present in the U.S., and more.
As a result, USCIS is implementing the NTA policy memo in instances where the H-1B visa holder is in their discretionary 60-day grace period, apparently interpreting that time period as being out of valid status. This new trend seems to alter earlier precedent and interpretations set by the Department of Homeland Security (DHS), and is causing confusion for H-1B visa holders and employers. Anecdotally, DHS is also reportedly using AI tools to automatically generate the NTAs, which may be contributing to the new trend.
Below are further details to know about the 60-day grace period, Notices to Appear, options, and more.
It is important to note that the following information is general advice and does not apply to each impacted foreign national. Foreign nationals who have received a Notice to Appear during their 60-day grace period should consult with experienced immigration counsel to examine the best immigration options specific to their individual circumstances.
What is the 60-day grace period?
Noncitizens with employment-based nonimmigrant visas in some categories such as E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN (and their dependents), are eligible for a grace period of either 60 consecutive days or until the end of their authorized nonimmigrant validity status — whichever is shorter — after cessation of employment.
This allows the noncitizen to remain in valid status during that time frame, provided they do one of the following before the end of the grace period:
- File an application to change to another nonimmigrant visa classification
- File an application to adjust status
- File (via sponsor) a petition to change employer
However, Department of Homeland Security regulations state that the agency "may eliminate or shorten this 60-day period as a matter of discretion."
While this has rarely occurred in the past, recent reports have anecdotally indicated that some nonimmigrant visa holders, specifically noncitizens in the H-1B category, have received Notices to Appear in immigration court during their 60-day grace period, even after they have taken one of the required actions but not before the last day of employment.
H-1B visa holders have been the main target of these notices because DHS is usually aware of the H-1B visa holder's cessation of employment versus those in other nonimmigrant visa categories. This is because the law requires petitioners to notify USCIS when H-1B visa holders are no longer employed by them, which in effect withdraws the H-1B approval. Such notification is not required for other nonimmigrant visa categories.
Upon receiving these withdrawals/notifications from petitioners, DHS is initiating NTA issuance, apparently rendering the visa holder "out of status," even though intent of the regulatory grace period is that the nonimmigrant remains in valid status.
What are Notices to Appear (NTAs)?
A Notice to Appear, also known as the Form I-862, is a document sent to foreign nationals that usually initiates removal proceedings.
Department of Homeland Security (DHS) files the notice with a U.S. immigration court when it believes someone is no longer in valid status. The notice is then sent to the noncitizen's address on file.
A Notice to Appear should include:
- The noncitizen's name, date of birth, address, phone number, and A-number.
- The reason the Department of Homeland Security alleges that the noncitizen should be removed from the United States.
- The location where the foreign national is required to appear in immigration court.
- The date and time of the court appointment.
- The name of the officer issuing the notice.
Noncitizens who receive a Notice to Appear should contact experienced immigration counsel immediately to discuss their options.
Available options
As mentioned above, the grace period was originally designed to allow nonimmigrants who have lost their jobs to seek alternative options.
Nonimmigrants who could be affected by the apparent new NTA issuance policy should take one of the required actions mentioned above, such as applying for a new nonimmigrant visa classification, as soon as their employment has ended.
Ideally, to avoid the NTA and "out of status" interpretation, such filings would need to be received by USCIS before the employer's notification to USCIS and H-1B withdrawal. However, this may not always be practical depending on the circumstances of the H-1B visa holder's job cessation, and because of the employer's own legal obligation to notify USCIS immediately upon employment cessation.
Those who have already received a Notice to Appear, or are within their 60-day grace period, should contact experienced immigration counsel as soon as possible to discuss the specific options that could be available to them.
The attorneys at Garfinkel Immigration Law Firm continue to monitor this recent trend closely and will update clients as circumstances evolve.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
