I can’t believe this is happening, but DHS is now trying to deport some H-1B holders who are in their grace period.
✳️ The situation:
➡️ H-1B holder leaves a job, and their employer withdraws the H-1B as they are required to do. In this case they did so after the grace period.
➡️ H-1B is then in a 60-day grace period, and either transfers their H-1B or applies to change their status before the grace period ends….
‼️…Except now, DHS is sending Notices to Appear (NTA’s) in immigration court for some people who are here on the grace period, including a client of ours.
They are alleging that the employer withdrawal revokes the H-1B status and the H-1B holder is therefore overstaying.
In this case, our client filed for a change to H-4 before the end of the grace period.
🤔 I can’t tell if they don’t know that the revocation is of the petition and not the grace period, and if they don’t know that a change of status or change of employer has been timely filed.
Or more sinisterly:
Is this an attack on the grace period? After all, the regulation does say “DHS may eliminate or shorten this 60-day period as a matter of discretion.” It’s just that since the grace period was created, we have never seen them eliminate or shorten it.
Or, is this an attack on pending change of status applications? After all, people in this state are technically not in “status” but are in a period of authorized stay.
Is this what they are trying to do? Deport anyone who doesn’t have actual status?
We will know for sure in short order.
In the meantime, for our client, we are moving to terminate the immigration court proceedings and hope to hear back before the hearing, so that our client won’t have to attend.
✳️ Here’s what I suggest companies do:
1️⃣ Think about advising departing employees of this risk
2️⃣ Consider holding off withdrawing the H-1B until the employee can show they have gotten another H-1B approved or have changed their status.
Of course, companies can’t wait forever to withdraw the H-1B, and change of status applications can take months.3️⃣ Contact your congressional representative to let them know how bad you think this is for the country. (Or have your internal government advocacy team do this.)
Crazy times we live in.
Please feel free to reach out to us with any questions at info@vanguardvisalaw.com.
