Immigration
New USCIS Policy Memo Disrupts 60-Day Grace Period for H-1B Visa Holders
By Buchanan Attorneys Khushbu Patel and Dilip Patel
In a significant development for foreign nationals residing in the United States under the H-1B visa program, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memo on Feb. 28, 2025, that alters the long-standing interpretation of the 60-day grace period afforded to certain nonimmigrant visa holders. This memo has raised concerns among H-1B visa holders and their employers, as it impacts the way Notices to Appear (NTAs) are issued in cases involving noncitizens deemed inadmissible and removable.
Under previous interpretations, noncitizens holding employment-based nonimmigrant visas, including H-1B, enjoyed a grace period of up to 60 consecutive days following the end of their employment. This period was intended to allow individuals the opportunity to transition to a new job, change their visa classification, or adjust their status without the immediate threat of removal. However, the new USCIS memo states that the agency will no longer exempt classes or categories of removable noncitizens from potential enforcement actions, including the issuance of NTAs.
Understanding the 60-Day Grace Period
The 60-day grace period is designed to provide a buffer for noncitizens in specific visa categories — such as E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN — allowing them to remain in valid status while they explore their immigration options. During this time, individuals may file for a change of nonimmigrant visa classification, apply for an adjustment of status, or submit a petition to change employers.
However, recent reports indicate that USCIS is interpreting this grace period differently, particularly for H-1B visa holders. Anecdotal evidence suggests that some noncitizens have received NTAs even during their 60-day grace period, raising alarms about the potential for enforcement actions during a time when individuals were previously considered to be maintaining valid status.
The Implications of the New Policy
The memo’s shift in interpretation appears to be particularly focused on H-1B visa holders, as employers are legally obligated to notify USCIS when an H-1B employee is no longer working for them. This notification effectively withdraws the H-1B approval, leading the Department of Homeland Security (DHS) to initiate NTA issuance against the visa holder, rendering them “out of status” despite the grace period’s intent.
This new trend has left many H-1B visa holders and their employers in a state of confusion and anxiety. The concern is intensified by reports that DHS is utilizing artificial intelligence tools to automate the generation of NTAs, potentially leading to an increase in enforcement actions that may not take individual circumstances into account.
Navigating the Uncertainty
For H-1B visa holders, the implications of receiving a Notice to Appear during the grace period are severe. A Notice to Appear, known formally as Form I-862, is a document that initiates removal, or deportation, proceedings against foreign nationals. It includes critical information such as the reasons for the removal, the location and time of the required court appearance, and the name of the issuing officer.
Individuals who receive an NTA are urged to seek experienced immigration counsel immediately to explore their options, as failing to do so could lead to dire consequences, including deportation.
To minimize the risk of receiving an NTA, H-1B visa holders are encouraged to take proactive measures as soon as their employment ends, or to secure other employment prior to leaving an employer. Filing for a change of status or applying for a new nonimmigrant visa classification before the employer notifies USCIS of the termination may help protect their status during this precarious period. However, achieving this can be challenging, given the employer’s legal responsibility to report employment termination immediately.
Consulting Legal Experts
Given the complexities of immigration law and the rapidly changing landscape, it is crucial for those affected by this new policy to consult with an experienced immigration attorney. Legal counsel can provide tailored advice based on individual circumstances and help navigate the potential ramifications of receiving a Notice to Appear.
In conclusion, the USCIS memo on Notice to Appears represents a significant shift in how immigration enforcement is approached, particularly for H-1B visa holders during their grace period. As the situation evolves, it is essential for foreign nationals and their employers to stay informed and seek guidance to ensure compliance with immigration regulations and protect their rights.
Tampa Bay area welcomes Attorney Khushbu Patel
We are pleased to introduce Attorney Khushbu Patel to our readers. Khushbu is an experienced immigration attorney and has recently joined the Buchanan Ingersoll & Rooney law firm to work with Dilip Patel, who writes our immigration articles. Khushbu brings with her a wealth of knowledge in immigration law and a passion for helping individuals and families navigate the complexities of the immigration process.
Khushbu was born and raised in Richmond, Va., where she developed a strong foundation in legal principles and a deep commitment to serving her community. She earned her law degree from a respected institution, Rutgers Law School, where she developed a keen understanding of the challenges faced by immigrants in the United States.
She married in April 2024 and recently moved to the Tampa area with her husband, who works in commercial contracting. Khushbu’s move to Tampa not only marks a new chapter in her personal journey but also allows her to contribute her expertise to the growing community in the region. Fluent in Gujarati, she is an active member of the BAPS Swaminarayan Mandir in Thonotosassa, Florida.
We are thrilled to welcome Khushbu to our readers and look forward to the invaluable information she will provide to them in the field of immigration law.