Trump Administration Proposes Cutting Grace Period for H-1B and Other Visas

DHS Proposes Ending 60-Day Grace Period for Certain Nonimmigrant Visa Holders After Job Loss

The Department of Homeland Security has proposed eliminating the policy that permits certain foreign workers, including H-1B visa holders, to remain in the United States for up to 60 days after losing their jobs while seeking a new sponsor. The change is outlined in a notice published in the Federal Register on Friday.

Under the proposal, affected workers would be considered immediately removable if they no longer hold employment tied to their visa status. The notice states that the rule “restores a direct relationship between an alien’s nonimmigrant status and the specific employment or activity that formed the basis of his or her admission or grant of status in the United States and reduces administrative burden.”

Public comments on the proposal will be accepted for 60 days. If finalized, the change would represent one of the larger revisions to these visa categories since the grace period was established nearly a decade ago.

Background on the Grace Period

A rule that took effect in early 2017, during the final days of the Obama administration, established a 60-day grace period for foreign nationals holding H-1B status and several other nonimmigrant categories after job loss. The period allowed time to seek new employment or adjust immigration status.

The covered categories include E-1 treaty trader visas, E-2 treaty investor visas, L-1 visas for executives and managers of international firms, O-1 visas for individuals with extraordinary ability in science, sports, or the arts, and TN visas for qualified Canadian and Mexican professionals. It also applies to H-1B1 visas for nationals of Chile or Singapore in specialty occupations and E-3 visas for Australian citizens in specialized professional roles.

Department of Homeland Security data indicate that nearly 4,000 workers per year have used the grace period to file new nonimmigrant worker petitions following a layoff or resignation. More than 99 percent of those filings involved H-1B visa holders.

The department stated that ending the grace period would align employment opportunities with U.S. workers. The notice says DHS assumes that employers would offer the same positions to qualified U.S. workers, file new I-129 petitions to sponsor nonimmigrant workers, or reassign tasks to existing employees. The proposal also notes that removal of the grace period would reduce administrative workload, because the current rule already permits DHS to waive or shorten the period at its discretion. Between October 1, 2017, and May 20, 2026, USCIS reviewed 1.9 million petitions or applications to determine whether the 60-day period could apply.

Effects on Workers and Dependents

The department acknowledges that the change would affect not only employers but also the families of visa holders who might be required to depart the United States. Dependents of H-1B visa holders could also lose status. Estimates from FWD.us place the number of H-1B visa holders in the United States at approximately 730,000, along with 550,000 spouses and children.

The proposal states that the department believes “the harm of the up to 60-day discretionary grace period outweighs the potential benefit it provides to the impacted aliens and employers, the alien’s dependents, and the community at large.”

H-1B Visa Program and Recent Policy Changes

Since 1990, the H-1B program has admitted hundreds of thousands of skilled foreign workers. U.S. Citizenship and Immigration Services data from April show that nationals of India comprise the largest share of H-1B recipients, followed by nationals of China. Several executives, including Microsoft’s Satya Nadella, Google’s Sundar Pichai, and SpaceX’s Elon Musk, have held H-1B status.

Congress has set the annual cap for new H-1B visas at 65,000, with an additional 20,000 reserved for applicants holding advanced degrees. Demand has regularly exceeded the cap.

The Trump administration has implemented several modifications to the H-1B program. It replaced the prior lottery system with a weighted selection process that favors higher-skilled and higher-paid positions. A court blocked an earlier attempt to impose a $100,000 fee on certain employers, but in August the administration proposed a new $103,265 fee for some H-1B petitions and extended a $4,000 biometric and security fee to cover extension applications filed by employers with large numbers of foreign workers.