According to the rules of the H-1B visa, if a holder of the H-1B visa terminates their job in the United States, there is generally a 60-day grace period during which they can stay in the U.S. to continue job hunting and plan their next steps.
The H-1B visa is one of the few U.S. non-immigrant visas that allows for “dual intent,” meaning that individuals can legally seek permanent residency during the validity period of the visa.
The 60-day grace period allows non-immigrant workers to maintain their status or request a change in status.
During this 60-day grace period, if they submit an application to change their non-immigrant status or adjust their status, even if they lose their previous non-immigrant status, they can legally remain in the U.S. for more than 60 days to continue job hunting.
The 60-day rule states, “Foreign nationals and their dependents who are granted or otherwise accorded E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification are not deemed to fail to maintain a nonimmigrant status solely on the basis of a cessation of the employment on which the classification was based, for up to 60 consecutive days, or until the end of the authorized validity period, whichever is shorter. Such nonimmigrants are granted a one-time grace period during each authorized validity period.”
However, some H-1B visa holders may receive a Notice to Appear (NTA) from the U.S. Citizenship and Immigration Services (USCIS) within the 60-day period after being terminated.
An NTA, also known as Form I-862, is a charging document that directs a foreign national to appear before an immigration judge and informs them of the nature of the removal proceedings, the legal basis for the removal proceedings, the factual allegations supporting the removal, and the charges they are facing.
So why do some foreign workers holding H-1B visas for employment in the U.S. receive NTAs within the 60-day period? The reason may lie in the discretionary power granted by the 60-day rule.
Regulations allow for the Department of Homeland Security (DHS) to exercise discretion to cancel or shorten the 60-day grace period for certain non-immigrant workers, including H-1B visa holders. In cases where an H-1B holder is deemed to have lost valid status, this discretionary power can be exercised, potentially leading to the issuance of an NTA, which marks the first step in the removal process. The DHS provides reasonable justifications when exercising this discretionary power, considering factors such as welfare benefits applications, family relationships, hardships, time spent residing in the U.S., criminal records, and community service.
Therefore, all H-1B visa holders who are unemployed in the U.S. or preparing to change jobs should be aware of this discretionary power held by the Department of Homeland Security.
（This article is based on a report from the Financial Express）