The 60-day discretionary grace period is a crucial provision that provides a safety net for high-skilled foreign workers in certain nonimmigrant statuses, including H-1B, E-1, E-2, E-3, L-1, O-1, and TN. This period, established under 8 CFR § 214.1 (l)(2), allows individuals and their dependents to remain in the U.S. for up to 60 consecutive days after their employment ends without being considered “out of status” solely due to the cessation of employment. It’s intended to give workers a window to find a new employer, file a new petition, or otherwise change or adjust their immigration status.

While the grace period has long been a reliable tool, recent reports and policy changes by U.S. Citizenship and Immigration Services (USCIS) have introduced a significant level of uncertainty and risk. The issuance of Notices to Appear (NTAs) to H-1B workers who are within this grace period—and even those with a pending change of employer (i.e. transfer) petition—signals a major shift in enforcement posture. This new approach highlights the need for foreign nationals and their employers to exercise extreme caution and proactively manage their immigration status.

The Discretionary Nature of the Grace Period

It’s important to understand that the 60-day grace period is a matter of discretion, not a guaranteed right. The regulation explicitly states that the Department of Homeland Security (DHS) can “eliminate or shorten this 60-day period as a matter of discretion.” While USCIS guidance and case law, like Matter of Arai, generally favor granting discretionary benefits in the absence of adverse factors, the new enforcement climate makes this less certain. The grace period is also limited to once per authorized validity period and may be denied for negative factors like fraud, violations, or criminal conduct.

The February 2025 NTA Memo and Its Implications

On February 28, 2025, USCIS issued a new policy memo that dramatically expands its authority to issue NTAs to place foreign nationals in removal proceedings. This memo instructs adjudicators to issue an NTA whenever a benefit request is denied and the applicant is no longer in lawful status at the time of the denial. This applies even if the status lapse was brief or followed a timely and valid filing. The memo eliminates broad categorical exemptions, making it possible for individuals to receive an NTA in a wide range of scenarios, including:

• Denied Petitions: If an H-1B extension or change of status application is denied, and the individual’s I-94 has expired, an NTA will be issued.

• Employer Withdrawal: An employer’s withdrawal of an H-1B approval after employment ends can trigger an NTA, even if the employee has a timely filed new petition pending. This is because Immigration and Customs Enforcement (ICE) may consider the individual to be without lawful status once the initial employer’s petition is withdrawn, despite the pending new filing.

• Fraud or Misrepresentation: The memo directs adjudicators to issue NTAs in any case involving substantiated fraud or material misrepresentation, even if the petition is denied for other reasons.

This new policy represents a shift toward more aggressive enforcement, where a petition denial or employer action that previously resulted in a quiet departure may now lead to formal removal proceedings.

Strategies in the New Climate

Given these heightened risks, foreign nationals should adopt a proactive and cautious approach to the 60-day grace period.

• File Early and Use Premium Processing: The best way to mitigate risk is to file new H-1B petitions or change of status applications as early as possible within the grace period. Whenever available, premium processing should be used to expedite the adjudication and reduce the time spent in an uncertain status.

• Provide Robust Evidence: When filing, include compelling evidence of the bona fides of the case, such as employment termination letters and new job offers, and, if applicable, a request for USCIS to favorably exercise its discretion.

• Consider Fallback Strategies: For some, a “bridge” filing, such as a B-2 change of status application, can be a potential fallback strategy to preserve lawful presence while a primary petition is pending or if a denial is anticipated.

• Develop Contingency Plans: Have a plan in place in case a petition is denied and an NTA is issued. This includes understanding the implications of removal proceedings and being prepared to respond promptly.

While the 60-day grace period remains an important provision, the new USCIS NTA memo and recent enforcement trends have significantly eroded its reliability as a safe harbor. By filing early, using premium processing, and preparing for all potential outcomes, foreign workers and their employers can better navigate this complex and high-risk environment.

How Cohen, Tucker + Ades Can Help

Navigating the complexities of U.S. immigration law requires experienced and diligent counsel. At Cohen, Tucker + Ades, we specialize in providing strategic guidance for high-skilled nonimmigrant workers and their employers. Our team stays abreast of the latest policy changes and enforcement trends, ensuring our clients are fully informed of the risks and prepared with a robust plan. We work closely with you to evaluate your specific situation, identify potential vulnerabilities, and execute a proactive strategy—whether that involves filing early, utilizing premium processing, or developing contingency plans to protect your status. Our goal is to minimize risk and secure your immigration future.

Sources:

8 CFR § 214.1 (l)(2) | Code of Federal Regulations

Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers | Federal Register

Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970) | Board of Immigration Appeals

USCIS Policy Manual, Volume 1, Part E, Chapter 8 | U.S. Citizenship and Immigration Services