H-1B Visa Trouble: Time's Up for Indians in the US?

A recent trend has emerged in which H-1B workers who have been laid off from their U.S. employment are being issued Notices to Appear (NTAs), which initiate formal deportation proceedings. The USCIS is sending NTAs to employees who are within the post-termination, 60-day grace period allowed under current immigration regulations. Particularly for those who are currently in the process of preparing status change applications or seeking new employment, this unanticipated development is causing substantial distress within the non-immigrant worker community.

When an H1B worker's employment is terminated prior to the conclusion of the approved petition period, they are typically granted a 60-day discretionary grace period in accordance with 8 CFR §214.1(l)(2). Although the rule granting 60 days of flexibility post-layoff is technically still in effect, its practical reliability is currently under scrutiny.

• If employment terminates, E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visa holders are granted a discretionary 60-day grace period.
• The individual (and his/her dependents) is not deemed to have failed to maintain status if the period is applied once per authorized validity period, and the duration is the shorter of 60 consecutive days or until the I-94 expiration.
• At its discretion, USCIS may reduce or abolish this grace period.
• Employment is not permissible during the amnesty period unless it is explicitly authorized by law.
• Locate a new employer who is willing to submit a timely H-1B transfer petition.
• Submit an application for a change in status (e.g., to B-2 visitor status);
• Alternatively, schedule to depart the United States. 

Although the policy has not been formally altered, immigration attorneys suspect that the Department of Homeland Security (DHS) is utilizing its discretionary authority to circumvent the grace period. This is due to the fact that the regulation permits DHS to "shorten or eliminate" the grace period, a practice that has been rarely employed until recently.

If you know you're about to be fired, work with your employer to find out how long you can stay. This will provide you with additional time to pursue new opportunities. Although it is not a guarantee, it may be advantageous if your present employer does not withdraw the H-1B petition they submitted on your behalf. Although it may be challenging to negotiate, it is advisable to make an attempt, as this could potentially mitigate the likelihood of receiving a Notice to Appear, or NTA.