In September and October, the Department of Homeland Security (DHS) published two proposed regulations that would affect individuals in H-1B and other employment-based immigration statuses, including TN, E-3 and O-1.
60-day grace period
The first regulatory proposal would eliminate the discretionary 60-day grace period that individuals in H-1B, TN, E-3, O-1 and certain other employment-based statuses may receive when their employment ends before the expiration of their approved status period. This proposed change would not affect individuals in F- or J- status.
The University submitted a comment letter opposing the elimination of this discretionary grace period and urging DHS to withdraw its proposal. The University argued that eliminating the discretionary grace would likely result in more immigration status violations following an early employment termination, undermine employees’ ability to navigate employment transitions, and weaken the ability of U.S. employers to attract and retain international talent
Deference
The second proposal would eliminate an existing regulation that generally requires U.S. Citizenship and Immigration Services (USCIS) to defer to its own prior determination of eligibility when adjudicating an extension petition involving the same underlying facts, unless there has been a material change in circumstances or eligibility requirements, or the previous approval was granted in error. Eliminating this requirement would allow USCIS to reach a different conclusion without specifically explaining why it is departing from its earlier determination, increasing uncertainty and the burden on petitioners seeking extensions of status.
While the University agrees that USCIS officers should thoroughly review all applications, it argues that eliminating the deference rule is unnecessary and that USCIS already has the authority to address petitions that were erroneously approved. The University therefore submitted a second comment letter urging DHS to withdraw this proposal and to preserve the existing regulation.
We will continue to monitor all developments related to both proposals and will update this article as warranted.