Terminated Nonimmigrant Workers May Receive 180 Day Grace Period to find New Employment
Brandon D. Neuman, Attorney
As the tech industry continues to see massive layoffs, foreign workers that are impacted by the layoffs currently have a 60-day grace period to find a new employer who will transfer their visa. If they go beyond 60 days, they are considered out of status and could face issues with future applications. In order to retain these valuable resources, the Biden Administration proposed extending the period to 180 days, which will provide a welcome relief, if implemented.
However, this recommendation faces at least two administrative challenges (in addition to any lurking political problems or pressure). The first challenge: this recommendation is non-binding. For the recommendation to take effect, USCIS must not only be willing to adopt the recommendation, the agency must also formally change the existing regulations.
Fortunately for those affected by layoffs, two existing executive orders may cause USCIS to act: EO 14031 (establishing the Commission and creating a White House Initiative on Asian Americans, Native Hawaiians, and Pacific Islanders) and EO 14012 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans). Because the Presidential Advisory Commission (under EO 14031) already identified and recommended changes to the regulations regarding post-termination grace periods, and because the Secretary of Homeland Security needs to review existing regulations for revision (per EO 14012), the Department of Homeland Security and USCIS may at least be required to seriously consider the Commission’s recommendation.
The second challenge is timing: under current executive orders, this Presidential Advisory Commission will only exist until September 30, 2023. If the Commission’s term expires before USCIS acts on its recommendations, there is an open question whether USCIS will still consider the Commission’s recommendations (notwithstanding the order to review immigration regulations per EO 14012). But, President Biden previously extended the Commission’s term, so he may choose to issue another extension.
Even if the Biden Administration changes the grace period to 180 days, regulatory change takes time, and attempting to rush regulatory change could backfire. The federal rulemaking process can be cumbersome and requires a minimum of 60 days for action (including 30 days for public comment after the rule’s first publication, the publication of the final rule, and a 30-day delay for the rule to go into effect after final publication). The administration may also choose to issue an emergency interim rule or other policy guidance, but they have not yet shown that level of urgency or interest.
So far, the Commission’s recommendations have a low record of success. Only one recommendation (regarding expiring H-1 and L-1 visa stamps in the United States) received agency action (from the Department of State), but the announcement about the action happened five months after the Commission’s recommendation, and the actual rollout is not expected until later this year. Meanwhile, other recommendations from the Commission regarding backlogs and processing have not yet been addressed by the Department of Homeland Security, USCIS, or the Department of State.
The Commission also continues to consider other possible recommendations, including a possible recommendation to allow people with approved I-140s who have been in the United States for more than five years to apply for Employment Authorization Documents and Advance Parole travel documents. But, the Commission’s discussion on that topic is delayed until at least May 2023, so any recommendations and any actions on that topic will only come much later.
Based on current implementation timelines from past recommendations, even if the Department of Homeland Security and USCIS accept the Commission’s recommendation to extend the existing grace period from 60 days to 180 days, the implementation of a 180-day grace period could be more than 6 months away.