60-Day Grace Period Elimination: What Employers Should Know

The Department of Homeland Security (DHS) intends to propose a new rule that would eliminate the 60-day grace period currently available to noncitizen workers following termination of sponsored employment. If finalized, this 60-day grace period elimination would leave affected workers with little time to respond to an unexpected job loss.

Currently, when an employer terminates a worker before the end of the worker’s authorized period of stay, the worker may generally remain in valid status for up to 60 days. During this grace period, the individual may seek sponsorship with another employer, change to a new status, or make arrangements to leave the country without concerns about being out of status.

This grace period is particularly helpful for individuals and families who need time to make arrangements following an unexpected termination, including addressing a spouse’s employment or a child’s schooling.

The 60-day grace period was added in 2017 and applies to H-1B, H-1B1, L-1, O-1, TN, E-1, E-2, and E-3 as well as their dependents.

The text of the proposed rule is not yet publicly available. The Office of Management and Budget is currently reviewing the rule before its expected publication in the Federal Register. The proposed rule would generally be subject to a public notice and comment period before it becomes final.

60-Day Grace Period Elimination: What It Means for Employees

If the rule is finalized as anticipated, employees that are terminated early from their positions will face a significantly shorter timeline to take action to maintain lawful status in the United States. An affected employee and their family members may need to depart immediately and apply for new status from abroad by way of a U.S. embassy or consular post.

Once an individual falls out of status, obtaining or resuming status, even in the same classification, such as H-1B, may generally require departure from the United States and a new application from abroad.

Remaining in the United States without lawful status can have serious immigration consequences. An individual who lacks lawful status may be subject to removal proceedings and, in extreme circumstances, detention. In addition, accruing more than 180 days of unlawful presence may result in a bar to future admission to the United States.

What This Could Mean for Employers

Employers should be mindful of the potentially compressed timeline created by this 60-day grace period elimination for employees whose sponsored employment is terminated. Where practical, employers may wish to consider providing advance notice of termination to give affected employees time to make arrangements or seek sponsorship from another employer.

For H-1B employees, employers should also remember that, in certain circumstances involving employer-initiated termination, they are required to offer to pay the reasonable cost of the employee’s return transportation abroad.

Employers may wish to consult with a Klasko attorney regarding their termination policies and practices in light of the anticipated 60-day grace period elimination. We will continue to monitor developments and provide updates as additional information becomes available.