US Moves to End 60-Day Grace Period for Foreign Workers

The US government is considering scrapping the discretionary 60-day grace period that allows certain foreign workers to remain in the country after their employment ends.

The proposal has been reviewed by the Office of Management and Budget (OMB) and is expected to be published by the Department of Homeland Security (DHS) in the Federal Register for public comment. Under the current rules, eligible foreign workers can generally remain in the US for up to 60 days after their employment ends, or until the expiry of their I-94, whichever comes first.

The proposed rule would remove this grace period for workers in several non-immigrant visa categories, including H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3 and TN. Dependants of affected workers would also be covered by the change.

If the grace period is removed, a worker could be considered out of status as soon as their employment ends. This could make it harder to find a new employer or apply for a change of status while remaining in the US.

Impact on Foreign workers

At present, the 60-day period gives H-1B workers time to find another employer, arrange an H-1B transfer or prepare to leave the country. Removing the provision would eliminate that additional period of protection. US Citizenship and Immigration Services (USCIS) would still have discretionary authority to excuse certain lapses in status. However, this would not offer the same certainty as a formal grace period.

When could the change take effect?

The proposal is not yet in force. DHS must first publish the rule in the Federal Register, after which the public will have an opportunity to submit comments. The comment period is expected to last between 30 and 60 days.

DHS would then have to review the submissions before deciding whether to issue a final rule. The proposed change therefore does not immediately alter the status of foreign workers currently covered by the 60-day provision.

The 60-day grace period was introduced in 2016 and implemented in 2017. It was designed to give certain foreign workers time to respond to an unexpected loss of employment without immediately losing their immigration status.