This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
AILA reports an increase in Notices to Appear (NTAs) issued when an employer withdraws an H-1B petition, even when a change-of-employer (COE) or change-of-status (COS) petition has been timely filed within the grace period. The 60-day grace period was intended as a safeguard under 8 CFR § 214.1(l)(2), in which H-1B professionals who lose their jobs can remain in the United States for up to 60 days to find new employment or change status without being considered out of status. Yet recent practice shows that this protection is fraying. The withdrawal step, required to end an employer’s wage obligations, now sometimes ironically triggers the very removal notice it was meant to prevent.
USCIS points to a February 2025 policy memo expanding its authority to issue NTAs when petitions are denied or revoked. But the memo also emphasized discretion. The legal mismatch is striking. H-1B portability under AC21 allows a worker to start for a new employer once a non-frivolous petition is filed. Immigration judges often dismiss these NTAs because the workers remain legally present and authorized for employment. But by then, the damage is done: careers disrupted, travel plans frozen, and families put through needless fear.
By treating workers with pending, bona fide filings as potentially out of status, USCIS is reshaping a long-standing protection for high-skilled workers. At minimum, this overreach not only chills hiring, but also signals to global talent that the United States is a risky place to stake a career. Until the agency realigns with its own rules, the 60-day grace period remains less a cushion than a trap waiting to ensnare.
