USCIS Policy Change on 60 Day Grace Period

USCIS has recently started issuing Notices to Appear (NTA) to some H-1B nonimmigrants porting their employment during their 60-day grace period after termination of employment. The NTA initiates removal proceedings in immigration court.

Since USCIS published the 60-day grace period regulation in 2017, USCIS has generally accorded the full 60 days. However, the regulation provides that this is a “discretionary” grace period of up to 60 days, and USCIS is not required to accord the grace period in any particular case. Previously, if USCIS refused to apply the grace period and if the H-1B petition was approvable, USCIS would issue the approval notice for consular notification.

Currently, there have been some reports that in some cases, USCIS has acted upon the receipt of H-1B withdrawal letters to issue a Notice to Appear (NTA) to the terminated employee to appear in immigration court.

Given this, employers may want to more carefully consider the timing of notification of termination of employment to USCIS, as balanced against the obligation of continuing payment of the offered salary until notification is submitted to USCIS.