NTA Alarm: H-1B Workers in Grace Period
When H-1B holders are laid off or resign from their jobs, they transition from employment status to unemployment status. During this time, they are granted a 60-day grace period to find new employment or change their immigration status without violating U.S. immigration law. However, in recent months, an increasing number of H-1B holders have received Notices to Appear (NTAs) even within this grace period. According to a recent USCIS disclosure, approximately 1,840 NTAs have been issued each week since February 2025, many of which involve individuals still in compliance with USCIS guidelines.[1] Amid these evolving policy changes, it has become more difficult for individuals to navigate this immigration dilemma. In this article, we will explain the issue and recommend strategies for addressing it. The sections below include:
Introduction to the Notice to Appear (NTA)
An Analysis of This Issue Under USCIS Policy
Recommended strategies to avoid receiving an NTA
Introduction to the Notice to Appear (NTA)
NTA is a formal document issued by the Department of Homeland Security (DHS) to initiate removal (deportation) proceedings against a noncitizen. It outlines the government's reasons for seeking your removal from the United States. People may receive an NTA if they are believed to have violated immigration laws, such as coming to the U.S. without permission, staying longer than allowed, or committing certain crimes.
The consequences of receiving an NTA are serious. You must appear before an immigration judge and explain your legal reasons for remaining in the United States. If you fail to appear at your hearing or cannot convince the judge that you are eligible to stay, the judge may issue a deportation order against you. However, receiving an NTA does not automatically mean you will be deported, you may still apply for relief such as asylum, withholding of removal, protection under the Convention Against Torture, or other immigration benefits if you qualify.[2]
An Analysis of This Issue Under USCIS Policy
The regulation concerning the 60-day grace period does not contain any explicit provision granting USCIS the authority to issue a Notice to Appear (NTA) to H-1B holders during their period of unemployment. Below is the relevant rule regarding USCIS’s discretion to eliminate the 60-day grace period.
“An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion.”[3]
The regulation states that “DHS may eliminate or shorten this 60-day period as a matter of discretion.” Thus, it appears that USCIS may be exercising discretion to eliminate the 60-day grace period in some cases. Since the regulation was published in 2016, there have not been prior widespread changes to the duration of the grace period. There has been no announcement from USCIS or DHS regarding changes to the implementation of the 60-day grace period for now. However, USCIS and DHS “have power” to eliminate the grace period objectively. However, “is it reasonable to assume that USCIS might issue Notices to Appear (NTAs) to H-1B workers who become unemployed, even within the 60-day period?” The answer appears to be “NO”.
First, although DHS clearly has the legal authority to shorten the grace period, there has been no public indication of this through regulation or guidance. In 2016, USCIS has generally allowed H-1B workers the full 60-day period to either depart the U.S., change employers, or change visa status.
Second, under the 2025 USCIS NTA Policy Memorandum, the agency expanded the issuance of NTAs to include certain visa overstay and status violation situations.[4] However, the policy primarily targets individuals who remain unlawfully present after adjudication, not individuals still within a recognized grace period following job termination.
In summary, although USCIS may lawfully exercise discretion to eliminate the 60-day grace period, it would not be reasonable to infer a widespread or routine issuance of NTAs to unemployed H-1B holders. Without official announcements or policy updates, such actions could be seen as inconsistent with the agency's established practices and may be susceptible to legal challenges.
Recommended Strategies to Avoid Receiving an NTA
Here are some recommendations for people who are laid off while on H-1B status to avoid receiving a Notice to Appear (NTA):
Track the unemployment 60-day grace period, which “starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.” The grace period date is not when your employer submits the H-1B withdrawal notice.[5]
If you secure another employer, you should promptly submit a new H-1B transfer petition to USCIS before the grace period expires.
If no immediate employment is available, consider changing your status to another visa category, such as B-2 or F-1. Each visa option has different advantages, limitations, and eligibility requirements, and each case presents its own set of circumstances. We strongly recommend consulting with an immigration attorney to determine the most appropriate visa strategy for your situation.
If there are no alternative options, leave within the 60-day grace period to avoid falling out of status and triggering an NTA.
Maintain reasonable documentation of your immigration timeline, such as your last day of employment, receipt notices from USCIS, and records of international travel, in case you need to prove that you are in compliance with immigration laws.
Conclusion
The increasing number of NTAs issued to laid-off H-1B workers, even those within the 60-day grace period, has raised widespread concerns and legal uncertainty. While DHS regulations allow the government to shorten or eliminate the grace period, there has been no official policy change or public announcement supporting routine issuance of NTAs in these situations. Therefore, it appears inconsistent with the longstanding interpretation of the grace period protections and may be subject to legal challenge. In this unpredictable environment, H-1B visa holders must work swiftly and strategically to protect their legal standing in the U.S. after termination by securing a new job, changing visa status, or leaving the country. It is essential to plan ahead and consult with a professional immigration attorney in order to avoid unforeseen immigration consequences.
[1] “Laid-off H-1B workers face deportation notices despite 60-day grace period” by The Economic Times, https://economictimes.indiatimes.com/nri/work/laid-off-h-1b-workers-face-deportation-notices-despite-60-day-grace-period/articleshow/122872707.cms [2] “Do You Have a Form Called A Notice to Appear (“NTA”)?” by Department of Justice, https://www.justice.gov/file/1211231/dl?inline= [3] 8 CFR 214.1 Requirements for admission, extension, and maintenance of status.[4] “2025 USCIS NTA Policy Memorandum (PM-602-0187 )” by USCIS, https://www.uscis.gov/sites/default/files/document/policy-alerts/NTA_Policy_FINAL_2.28.25_FINAL.pdf [5] “Options for Nonimmigrant Workers Following Termination of Employment” by USCIS, https://www.uscis.gov/archive/options-for-nonimmigrant-workers-following-termination-of-employment-0