H-1B is officially dead, nobody will take the risk: Indian career coach says DHS proposal language on ending 60-day grace period is brutal

Indian career coach in the US, Anushk Sharma, reacted to the DHS proposal to end the 60-day grace period for several visa categories, including H-1Bs, and said that if this proposal becomes a rule, the H-1B visa program is officially dead. The DHS published the proposal and invited public comments before it becomes a rule. “If the current language of the proposal becomes a rule, the H-1B is absolutely dead because no one can take the risk, because this rule says if you lose your job today, you will have to leave the US tomorrow. This is crazy brutal,” Sharma said.

What does DHS say in the new proposal?

The proposal said that in 2016, DHS promulgated a final rule establishing an up to 60-day discretionary grace period following cessation of employment for aliens present in E-1, E-2, E-3, H1B, H-1B1, L-1, O-1 or TN status (and their dependents). The purpose of the up to 60-day discretionary grace period was to enhance job portability, stability, and flexibility for these high-skilled nonimmigrant workers upon cessation of employment.The up to 60-day discretionary grace period was allowed an alien present in the United States in one of those statuses, and their dependents, to remain in the United States for up to 60 days or until the end of the authorized validity period, whichever is shorter, without being considered to have failed to maintain his or her status on the basis of cessation of employment or activity of the principal alien, unless such grace period was shortened or eliminated by DHS, it said.DHS now believes, based on its experience administering the up to 60-day discretionary grace period over the last 10 years, that the existence of the grace period is inconsistent with the purpose for which Congress createdthe relevant nonimmigrant classifications. DHS also believes the grace period increases administrative burden on USCIS by adding complexity to the documentation and adjudication process. While many of the factors that USCIS considers in adjudicating a subsequent immigration benefit request where a grace period is applicable are also relevant to a discretionary decision whether to shorten or eliminate the grace period, the need for adjudicators to consider the grace period can add steps to the process, it said.For example, officers adjudicating subsequent benefit requests (such as an extension petition which generally requires the beneficiary to have maintained status) must also determine whether the grace period would impact the benefit request, as this is not always clear from the request itself. The officer must also determine whether to eliminate the grace period as a matter of discretion and, if an officer decides not to eliminate the grace period, the officer then must determine and verify the end date of the alien’s prior employment to determine the start and end date of the grace period, it said.DHS said it considered shortending the grace period from 60 days but a shorter grace period would not reduce the burden, they said.