DHS published its employment-based immigration final rule on November 18, 2016, with an effective date of January 17, 2017. November 24 is the coverage date for this retrospective, not the publication date. One provision concerned the consequences of employment ending before a qualifying nonimmigrant’s authorized validity period expired. [2016-27540][2015-32666]

The final text provided up to 60 consecutive days, or the remainder of that validity period if shorter, during which cessation of the qualifying employment alone would not mean failure to maintain status. It applied once per authorized validity period. DHS retained discretion to shorten or eliminate the period. The specified categories were E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN, with covered dependents. [2016-27540][2015-32666]

The December 31, 2015 proposal had described the interval as time to look for employment, seek a change of status or prepare for departure. Its proposed list did not include O-1, which the final added. Comparing the documents therefore clarifies both the purpose of the interval and a change in its reach; the earlier proposal was not the final eligibility rule. [2016-27540][2015-32666]

A further distinction is essential: this grace period was not, by itself, work authorization. Other qualifying provisions, including H-1B portability, could provide an independent basis for employment. The two sources establish one rulemaking’s design and limitations. They do not show that any individual qualified, that a full 60 days was assured, or that a job transition succeeded. [2016-27540][2015-32666]

Source documents

  1. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workershttps://www.govinfo.gov/content/pkg/FR-2016-11-18/html/2016-27540.htm
  2. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workershttps://www.govinfo.gov/content/pkg/FR-2015-12-31/html/2015-32666.htm