REGULATION: Eliminating the Discretionary 60-day Grace Period

A. Purpose and Summary of the Regulatory Action

The purpose of this proposed rule is to remove the availability of the up to 60-day discretionary grace period from the regulations at 8 CFR 214.1(l)(2). The up to 60-day discretionary grace period disconnects the alien’s lawful status from the very basis of eligibility under these employment-based nonimmigrant classifications. By statute, an alien’s lawful status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN nonimmigrant classification is directly connected to and contingent upon the alien conducting certain employment activities or otherwise providing services in the United States that is generally tied to a petitioning employer. In order for an alien in any one of these classifications to maintain his or her status, the alien generally must maintain the employment or continue to perform the activity that was the basis of the alien’s eligibility for the classification and associated admission or grant of status. However, under current regulations, these aliens, and their dependents, are not considered to have failed to maintain nonimmigrant status for a grace period of up to 60 days following cessation of the employment or activity that was the basis of their nonimmigrant status, unless that grace period is shortened or eliminated as a matter of DHS discretion. Typically, the decision whether or not to shorten or eliminate the grace period is made by DHS when a petitioner submits a petition on behalf of an alien, or the alien submits an application on behalf of him or herself, which seeks to extend the stay or change or adjust the status of the alien following the cessation of employment or activity that was the basis of his or he initial classification or grant of status.

The proposed rule, by removing the up to 60-day discretionary grace period, would better align the regulations with the statutory provisions governing the relevant classifications by requiring an alien to depart from the United States immediately upon his or her failure to maintain the employment or activity that was the basis for the nonimmigrant classification or status (unless otherwise authorized to lawfully remain in the United States). It would also reduce the administrative burden on USCIS associated
with the grace period. DHS originally extended this grace period to aliens in the listed classifications,
and their dependents, to encourage aliens who ceased employment prior to the end of the petition validity period to remain in the United States to pursue other immigration options to maintain a lawful immigration status and, depending on the classification sought, continue or regain employment authorization; and to help U.S. employers to more easily facilitate changes in employment for existing and newly recruited nonimmigrant
workers.

However, the relevant rulemaking did not sufficiently consider the negative impacts of the grace period provision. Upon reconsideration, and consistent with the Secretary of Homeland Security’s (Secretary) broad authority to set the time and conditions of admission of nonimmigrants and to require that they depart the United States upon failure to maintain the employment or activity that was the basis for the
classification or status, DHS believes that removing the up to 60-day discretionary grace period through this proposed rule is necessary to better align the regulations with the statutory basis for nonimmigrant status and to reduce administrative burden associated with administering the grace period.

Temporary employment authorization is tied to the petitioning employer. Allowing aliens to remain in the United States while conducting a job search reverses the order of operations outlined in the statutes. The programs are designed to help a petitioning employer fill a specific need when no Americans are available. These programs already introduce foreign competition into the labor market, the grace period just adds more pressure on American workers.