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The Biden Administration Should Extend The 60-Day Grace Period For Laid-Off Skilled Immigrant Workers

The 60-day clock starts running on the day someone gets their final paycheck.

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Applying for a VisaBy now, you’ve likely seen the headlines that immigrant workers who are part of the massive layoff of workers during this economic downturn will have just 60 days to find new employment or leave the country. Sixty days.

But that’s not even the worst of it. The workers affected by this rule are immigrants in this country on any number of employment-based visas, including the well-known H-1B. The rule gives them 60 days if they’re laid off, or the length of time left on their work visas — whichever is shorter. Therefore, the 60 days will apply only to those with more than 60 days remaining on their visas.

And it gets even more confounding. Many of these immigrant workers may already be in “line” to get a green card, legal permanent residency in the United States. If that is the case, their future is completely up in the air. If the job goes, so does the green card.

That is, unless the person can return in the future to the original job the green card application sought. It may be possible since these tech companies will likely be hiring again once the economy turns around. However, if the jobs for which the green card applications were filed have been eliminated, the green card applications will still be lost.

So, what are the options? The 60-day clock starts running on the day someone gets their final paycheck. We are smack in the middle of the holiday season with a stressful economic downturn.  While the economic slowdown is industry agnostic, it is hitting the tech world visibly and aggressively. As such, given the timing, people may not be able to find jobs to transfer their visas to within 60 days.

But even if they do find a new employer, 60 days might still be insufficient. A visa application can take about four weeks to prepare. More importantly, the application must be received by the government no later than the 60th day.

Altogether, it is very likely that most people will not have enough time to find a job and file an application.

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It’s important, at this point, to understand how the 60-day rule came to be. There has always been a 10-day grace period for most work visas. But it only applied at the expiration of the visa if you completed the entire term. Once your visa expired you had 10 days before you were out of status and had to leave the country. If you were laid off, fired, or resigned, you were out of luck; there was nothing available to you. During the 2008-09 recession, we came to understand how brutal that could be on employees and their families. While it took a few years, we eventually got the 60-day grace period through the regulatory rule-making process during the Obama administration.

At the time, during the public comment period, there were many comments supporting an increase to 90 or 120 days. DHS defended its decision for 60 days by saying: “Adding a grace period of up to 60 consecutive days upon cessation of employment allows the affected high-skilled workers sufficient time to respond to sudden or unexpected changes related to their employment. DHS believes that such time may be used to seek new employment, seek a change of status to a different nonimmigrant classification, including B–1/B–2 classification, or make preparations for departure from the United States.”

I’m pretty sure none of these laid-off immigrant workers are sitting around twiddling their thumbs as the clock runs down. They are actively looking for a new employer willing to sponsor visa applications in an “expedient manner.” It is clear DHS believed, at the time, that 60 days would be sufficient. And until now, people have lived with the rule and made it work. But a mass layoff during a terrible economic downturn was never contemplated when the rule was created.

The New York Times reported on November 7 that 100,000 had been laid off. That number is likely higher almost three weeks later. We don’t have statistics yet on how many of these people are skilled immigrant workers. My guess would be at least 15% to 20%.

Once the 60-day clock has run out, workers lucky enough to find a new U.S. employer willing to seek a visa on their behalf will have to leave the U.S. in order to activate that new work permit.

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Those with a still-valid H-1B visa may go to a neighboring country and return with the new approval notice.

If their visa expired within 30 days of landing the new job, and they have been approved for a new visa, the “visa revalidation” rules allow them to leave and re-enter from Canada, Mexico, or an adjacent country.

However, a large number of people who couldn’t leave the U.S. during the COVID-19 lockdowns are unlikely to have valid visas. The third-country option wouldn’t be available to them because, since the pandemic lockdown, third-country consulate interviews have not been available. They would need to return to the consulate in their home countries for an H-1B visa stamp. Some may be eligible for interview waivers, policy created during lockdown to get around in-person interviews. But there are certain conditions, and not everyone will qualify.  Therefore, in-person interviews will be the only way to get a new visa stamp. Yet, most consulates worldwide have an average of seven to 12 months waiting for a visa appointment. This will hurt both the employer trying to fill a position and the employee who needs to get back to their job and life in the United States.

This entire situation has produced chaos and anxiety, especially among those immigrant workers with U.S. citizen children who know nothing but America as their home.

I’ve been working on this issue from a number of angles for a long time, and from my vantage point have a few potential solutions I think the Biden administration should consider.

First, the administration could simply issue new policy guidance extending the 60-day grace period. During the COVID-19 pandemic, the administration has allowed a 60-day flexibility grace period to respond to all sorts of deadlines. Perhaps it can do so here, too.

Alternatively, the administration could issue a new interim final rule. When an agency finds that it has good cause to issue a final rule without first publishing a proposed rule, it often characterizes the rule as an “interim final rule,” or “interim rule.” This type of rule becomes effective immediately upon publication.

If we didn’t have the 60-day grace period to start with it, we’d be facing the equivalent of an exodus. I can’t even picture all the ramifications. So, I thank the Obama administration for creating this rule that is now in the spotlight and understood to be critical.

We need the Biden administration to move the ball forward. It has the opportunity and mechanism to help reduce the chaos that’s already forming by taking appropriate action to allow laid-off skilled immigrant workers an additional 60-day grace period.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree.  Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at tahmina@watsonimmigrationlaw.com, connect with her on LinkedIn or follow her on Twitter at @tahminawatson.

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