The U.S. government is seeking to drastically change rules for H-1B workers who lose their jobs and could end a 60-day grace period of employment termination if that happens, with the proposal to end the current grace period for H-1B workers at work.
The potential change would have enormous influence on high-skilled foreigners in the United States - and thousands of foreign workers who depend on H-1B visas for jobs to work for American employers - and potentially the job market.
Existing rules state that eligible H-1B workers terminated can expect a grace period of up to 60 days (until the end of their authorized validity period, whichever comes first) for a job that could be found and applied for. USCIS has said the grace period can allow workers to look for other jobs and do the necessary immigration paperwork.
The policy change would be a major change as the 60-day period has become an important safety net for H-1B professionals affected by layoffs. When all employment ends in technology, consulting, finance and engineering, workers are at large uncertainty. Finding a new employer willing and able to sponsor an H-1B worker can take time, especially when companies have to go through internal hiring processes and immigration filings.
For H-1B employees, the grace period is not just about getting more time to search for work, but the chance to meet with prospective employers and immigration lawyers and family members and figure out what is the best way forward. Some nonimmigrant workers may choose to change to another status or take other eligible immigration routes when they have done their job, as USCIS has said.
The issue is particularly acute for Indian professionals because India has historically been one of the largest sources of H-1B workers. Many Indian technology professionals migrate to the US through employer-sponsored visa programmes and build careers around continued employment with sponsoring companies. A sudden job loss can therefore create immigration uncertainty as well as the usual financial and professional challenges of unemployment.
However, the proposed regulation should not be interpreted as the 60-day grace period has already disappeared. The current maximum grace period has been written in federal regulation at 8 CFR 214.1(l)(2). USCIS has previously stated that changing the regulatory grace period would require a formal rulemaking process under the Administrative Procedure Act.
That distinction matters because government plans have to go through a series of steps before they become the final policy. A proposal can be released for public review and comment before the government decides to issue a final rule. The final version could be different from the initial proposal. Until the new rule is in place, existing regulations are applicable to those eligible H-1B workers.
If the 60-day grace period were ultimately to be withdrawn or significantly shortened, employers and employees would be faced with a greater need to act soon after a firing. How would this change impact the recruitment and retention of foreign professionals? And for workers, it might mean less time to get another qualification or find another lawful pathway into the USA.
So the proposal is going to attract a lot of attention from tech companies, immigration lawyers, employers and foreign professionals. Those who favor tighter immigration laws also could see the grace period change as part of a larger move to tighten enforcement and for visa holders to still have qualified jobs. Critics may argue that reducing the transition time would put skilled workers in an impossible position when companies lose jobs or lay them off.
The H-1B programme is still a key component of the US employment-based immigration system, especially for specialized jobs that require technical or professional expertise. Any major changes to the rules for H-1B workers would have more effect on American businesses and the international talent pool.
The key point is that the current 60-day grace period for H-1B is already regulated by current laws, and a change in that would require regulation. Workers and employers need to distinguish between a government proposal and a law. The ultimate outcome will depend on the rules and the decision made by the U.S. government.
