What’s Happening
Employers of H-1B, H-1B1, and E-3 workers need to be aware of a growing trend in immigration enforcement practices that could affect their workforce and compliance obligations. Recent trends show that U.S. Citizenship and Immigration Services (USCIS) is taking a stricter approach to the 60-day post-termination grace period, and in some cases, is issuing Notices to Appear (NTAs) in removal proceedings upon being notified of the withdrawal of an H-1B petition, even when a worker has filed a timely petition to remain in the United States. This shift, coupled with longstanding employer obligations around terminating foreign workers, increases the risks for businesses if proper steps are not taken when terminating an H-1B, E-3, or H-1B1 employee. This alert explains what these changes mean and what actions employers should take now to stay compliant.
What you Need to Know
Overview of the 60-Day Grace Period
When an H-1B, H-1B1, or E-3 employee's job ends they may be eligible for a discretionary grace period of up to 60 days (or until the end of the employee’s authorized period of stay - whichever is shorter) to remain in the U.S. and take action such as:
Transferring their H-1B to a new employer,
Filing a change of status,
Departing the U.S. voluntarily.
The regulations make it clear that the grace period is discretionary, meaning it’s not automatically granted. However, if there are no negative factors (such as unauthorized work, immigration violations, or criminal issues) USCIS usually approves it. Importantly, USCIS regulations require the agency to apply this discretion fairly, without bias or inconsistency.
The grace period isn’t something that’s officially “granted” when employment ends. Instead, USCIS reviews it when deciding on a new petition or application, such as a change of employer or status filed during the grace period. If that petition is approved, it generally means USCIS recognized the grace period as valid.
New Trends of NTA Issuance Following H-1B Petition Withdrawal
Recent reports show that USCIS has begun issuing Notices to Appear (NTAs), which is the first step in removal (deportation) proceedings, following the termination of H-1B employment. This is happening even to employees who:
Were terminated recently,
Have a timely-filed petition for a new employer or status change during the 60-day grace period.
The trigger for NTA issuance often appears to be the prior employer’s withdrawal of the H-1B petition after termination, which is required under the applicable regulations governing H-1B, E-3, and H-1B1 status.
This puts employers and employees in a difficult position as employers must withdraw the H-1B petition at the end of H-1B employment but doing so can result in their employee being placed in removal proceedings despite being eligible for a grace period.
Possible solution: If an employer wants to reduce the immigration impact of a termination, they can consider offering an extended notice period or allowing the employee to use remaining PTO before officially ending employment. This gives the employee more time to file a change of status or change of employer petition before the termination is finalized and the employer must notify USCIS of the H-1B withdrawal. Employers considering this option should first consult with immigration counsel to confirm there are no compliance issues with this approach based on their specific circumstances.
Employer Best Practices Following a Termination
To protect their company from wage liability and other compliance issues, employers must ensure a bona fide termination of your H-1B, H-1B1, or E-3 worker.
3 Steps to a Bona Fide Termination:
Clearly inform the employee they are terminated.
Notify USCIS in writing of the termination so the petition can be withdrawn.
Offer to pay for the employee’s return transportation to their home country.
Failing to complete all three steps can result in the employer being liable for back wages, even months after the employee stops working. Employers considering terminating an H-1B, E-3, or H-1B1 employee should consult with immigration counsel before doing so to ensure a bona fide termination is effectuated.
Special Note on E-3 and H-1B1 Employees
Many E-3 and H-1B1 workers apply directly at a U.S. consulate without filing a USCIS petition. But even in these cases, employers are still required to notify USCIS of the termination, despite the fact that the USCIS system doesn’t make that easy and often will reject withdrawal notifications for E-3 and H-1B1 petitions not filed with USCIS.
Best Practice: Send the termination notice to the USCIS Service Center that typically handles such petitions (e.g., Vermont Service Center), and retain proof of the notification even if it is ultimately rejected by the service center.
Practical Tips for Employers
Don’t wait until the end of the 60-day grace period to take action. Complete the termination process promptly to avoid back wage liability.
Communicate clearly with departing employees about their options and the risks and advise them to consult their own immigration counsel.
Document everything: Keep a record of your termination notice to the employee, the USCIS withdrawal letter, and the transportation offer.
Consult legal counsel before terminating visa workers to ensure compliance and reduce risk exposure.
D&S is continuing to monitor this developing trend and will provide updates as they become available.