When a H-1B worker’s employment ends, immigration regulations at 8 C.F.R. § 214.1(l)(2) authorize a discretionary grace period of up to 60 consecutive days (or until the end of the authorized validity period, whichever is shorter). During this period, the individual “shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of employment.”
This regulatory protection was designed to allow highly skilled professionals time to seek new employment, file a change of employer petition, request a change of status, or prepare for departure from the United States.
Archived USCIS Guidance
For several years, USCIS maintained a page titled Options for Nonimmigrant Workers Following Termination of Employment. That page summarized strategies such as H-1B portability, change of status, adjustment of status, and compelling circumstances EAD. On January 24, 2025, USCIS archived the page. When USCIS archives guidance, it signals that the agency no longer considers the content current or reliable.
The removal of this resource underscores that workers should not rely on prior summaries as official guidance. Instead, attention should focus on the regulation itself and how DHS exercises its discretion.
The Discretionary Nature of the Grace Period
While the regulation does authorize a 60-day grace period, it also provides DHS with the power to “eliminate or shorten this 60-day period as a matter of discretion.” The phrase “shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of employment” is balanced by DHS’s ability to cut the period short where adverse factors exist, such as fraud, unauthorized employment, or other violations of status.
The Board of Immigration Appeals in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), provided important guidance on discretion. In that case, the Board explained that when an applicant is otherwise eligible for a benefit, discretion should generally be exercised favorably unless there are negative factors. The principle is that discretion cannot be withheld arbitrarily or based on assumptions, but should be guided by fairness and consistency.
NTAs During the Grace Period
Despite this framework, some H-1B workers have received a NTA while still within the 60-day grace period. A common trigger is the former employer’s withdrawal of the H-1B petition. Once USCIS records the withdrawal, the worker may be flagged as out of status—even though the regulation provides a period of authorized stay.
The February 28, 2025 USCIS NTA memo has made this more likely by directing adjudicators to issue NTAs when a benefit request is denied and the individual is no longer in lawful status. In employment-based contexts, this means that if a H-1B transfer petition filed within the grace period is later denied, USCIS may issue a NTA.
Supporting Favorable Discretion
Because the grace period depends on how USCIS applies discretion, filings should be supported with documentation that shows compliance and transparency, such as:
- A termination letter from the prior employer showing the date employment ended, and in addition, a recent pay slip highlighting the end date of the pay period.
- Evidence of prior compliance with immigration rules, such as maintaining H-1B status without unauthorized employment.
These materials help USCIS adjudicators see the filing as bona fide and deserving of favorable discretion.
Acting Within the Grace Period
For H-1B beneficiaries, the most important step is to act quickly: filing a transfer or change of status as soon as possible within the 60-day window, ideally using premium processing to reduce uncertainty. At the same time, petitions should be well-supported with documentation to encourage USCIS to exercise discretion favorably. Beneficiaries should also be prepared with a backup plan if the petition is denied, whether that means considering consular processing abroad or exploring another lawful pathway before the grace period expires. Taken together, these steps—early action, thorough documentation, and contingency planning—help reduce risk when relying on the grace period.
Key Takeaway
The 60-day grace period continues to be a valuable protection for H-1B workers, and USCIS often does allow filings made during this time. But workers should be aware that NTAs are being issued in some cases where the employer revokes the H-1B.
Receiving a NTA is not the end of the road. On the scheduled date in immigration court, a beneficiary can, through their attorney, demonstrate that they were still within the 60-day grace period and that during this time they filed a H-1B transfer or a change of status. What is critical is that a NTA should never be ignored. The worker must engage an attorney to represent them and ensure the court recognizes that they acted lawfully within the protection of the grace period.
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