Trump administration completes review of plan to eliminate H-1B grace period

Trump administration completes review of plan to eliminate H-1B grace period

The Trump administration has completed its regulatory review of a proposal that would eliminate the 60-day grace period currently available to foreign professionals on H-1B and other work visas after their employment ends, moving the controversial measure closer to potential implementation.

The Department of Homeland Security submitted the proposal, titled "Eliminating the Discretionary 60-day Grace Period," to the White House Office of Information and Regulatory Affairs on August 6. The review concluded on August 27 with a designation of "Consistent with Change," indicating the proposal cleared the White House process with modifications.

The measure would affect workers holding H-1B, E-1, E-2, E-3, H-1B1, L-1, O-1, and TN nonimmigrant visas, along with their dependents. Computer-related occupations, which accounted for 65 percent of approved H-1B petitions in fiscal year 2023, would bear the brunt of any policy change, followed by architecture, engineering, and surveying positions at 10 percent.

Indian nationals face disproportionate impact

Indian nationals received 71 percent of all approved H-1B visas in fiscal year 2024, totaling 283,397 approvals out of 399,395 total H-1B petitions approved that year. Chinese nationals ranked second with 46,680 approvals, representing 11.7 percent of the total.

The proposal has not been published, and its full provisions remain unavailable. The existing 60-day protection therefore remains in force. Under current regulations, eligible workers may receive up to 60 consecutive days after their employment ends, or until the expiration of their authorized stay, whichever period is shorter. During this window, workers cannot legally work but can seek another employer willing to sponsor them, apply for a change of immigration status, or prepare to depart the United States.

The grace period regulation was created in 2016 and took effect in January 2017 as part of a broader rule titled "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers." Prior to 2017, no such grace period existed for H-1B workers.

Rapid regulatory review raises questions

The 21-day review period stands in contrast to historical norms. According to Executive Order 12866, OIRA reviews should typically be completed within 90 days, though extensions are possible. From 1994 through 2011, the average review time was 50 days, making this review significantly faster than the historical average.

The next step would be publication of the proposed rule in the Federal Register, followed by a public comment period typically lasting 30 to 60 days. DHS would then need to consider public comments and issue a final rule before any changes could take effect, a process that typically takes several months.

Former adviser condemns proposal

Ajay Jain Bhutoria, a former member of the President's Advisory Commission on Asian Americans, Native Hawaiians and Pacific Islanders, strongly criticized the proposed change and called for extending rather than eliminating the existing grace period.

Eliminating the 60-day grace period is both inhumane and unworkable. When a high-skilled worker faces a sudden termination, 60 days was already dangerously short. Stripping away this protection entirely leaves thousands of law-abiding individuals with zero time to wrap up their lives.

Bhutoria noted that he had secured unanimous support from the White House advisory commission in 2023 for a recommendation to extend the grace period from 60 days to 180 days. He argued that recruitment in technology, healthcare and engineering frequently involves several interviews, followed by immigration paperwork required to transfer a worker's status to a new employer.

He called on community organizations and business leaders to mobilize and submit public comments against the regulation once it opens in the Federal Register.

Program structure and scale

The H-1B program has an annual cap of 65,000 new visas, with an additional 20,000 available for those holding a United States master's degree or higher, for a total of 85,000 cap-subject H-1B visas per fiscal year. Many H-1B workers are exempt from the cap, including those employed by universities and nonprofit research organizations.

The median annual compensation for employees with approved H-1B petitions was 118,000 dollars in fiscal year 2023. The professional, scientific and technical services sector accounted for almost half of approved petitions at 48 percent.

About half of H-1B petitions approved for initial employment in fiscal year 2023 were for individuals already in the United States changing from another status. Of these, 72 percent changed from F-1 academic student or F-2 dependent status, illustrating the pipeline from international students to H-1B workers.

The H-1B programme permits American employers to hire foreign professionals for specialized occupations requiring advanced knowledge. Technology companies are among its largest users.