If you’re an H-1B visa holder in the United States and have recently ended employment, you’re likely aware of the 60-day discretionary grace period that allows you to change or extend status without immediately falling out of lawful presence. However, recent developments have shown that some nonimmigrant workers—including H-1B holders—are receiving Notices to Appear (NTAs) in immigration court during this grace period.
Here’s what you need to know—and how to protect yourself.
“While the 60-day grace period following the end of H-1B employment is a protection many rely on, it is important to understand that this grace period is ultimately granted at the discretion of DHS.
What we are not being told in cases where Notices to Appear are being issued during this window is critical: Was the H-1B formally withdrawn by the employer? Did the individual’s I-94 already expire? Were there other underlying factors—such as prior immigration violations or unresolved status issues—that may have triggered the NTA? These questions matter.
We encourage anyone who has been issued an NTA or is within their grace period to seek qualified legal counsel. With shifting enforcement patterns, assuming you are ‘safe’ could be a costly mistake.”
— Pallavi Ahluwalia, Managing Attorney, Ahluwalia Law Offices, P.C.
Understanding the 60-Day Grace Period and USCIS Discretion
Under current federal regulations at 8 CFR § 214.1(l)(2), nonimmigrant workers admitted under the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications—and their dependents—are not considered to have failed to maintain lawful nonimmigrant status solely because their employment has ended, for up to 60 consecutive days or until the end of their authorized stay, whichever is shorter. This grace period is available once during each authorized validity period and is intended to provide foreign workers a window of time to take qualifying steps to extend, change, or adjust their immigration status.
However, this regulation also includes a critical caveat:
“DHS may eliminate or shorten this 60-day period as a matter of discretion.”
This language grants the Department of Homeland Security broad authority to reduce or revoke the grace period in individual cases. While USCIS has not previously exercised this discretion on a wide scale since the regulation’s publication in 2016, recent issuance of NTAs to individuals within their 60-day grace period may indicate a shift in enforcement posture. As of the time of writing, no formal guidance or announcement has been issued by USCIS or DHS to indicate a policy change regarding the grace period’s implementation.
The Role of the Notice to Appear (NTA)
A Notice to Appear (Form I-862) is a charging document issued by DHS to initiate removal proceedings. It outlines the immigration charges and informs the individual of the date and location of their hearing before the immigration court. Receiving an NTA does not automatically mean deportation, but it does commence formal legal proceedings and places the individual at risk of removal if no relief is granted.
NTAs may be issued in various scenarios, including when an individual remains in the U.S. beyond the period of authorized stay, even if they believe they are covered by the grace period.
For more information and to view a sample NTA, visit the Immigration and Customs Enforcement (ICE) website.
Source: National Law Review, “USCIS Issuing NTAs to H-1B Holders Within 60-Day Grace Period,” 2025.
What is an NTA?
A Notice to Appear (Form I-862) is a charging document issued by U.S. Citizenship and Immigration Services (USCIS) that begins formal removal proceedings against a noncitizen. It outlines the allegations and the time, date, and location of the first court hearing before the Executive Office for Immigration Review (EOIR).
Can You Receive an NTA During the 60-Day Grace Period?
Yes. Although 8 CFR 214.1(l)(2) permits a 60-day grace period after employment ends, USCIS policy as of February 28, 2025, clarifies that individuals who are not in a lawful status at the time a benefit is denied, or who are otherwise removable, may still be issued an NTA—even during that grace period.
When Will USCIS Issue an NTA?
Under the 2025 policy, USCIS will or may issue an NTA in the following scenarios:
- If a benefit request is denied and the noncitizen is not lawfully present.
- If there is substantiated fraud or misrepresentation, regardless of the reason for denial.
- If there is a criminal record, including charges or arrests—even without a conviction.
- If parole has expired, or if a lawful permanent resident abandons their status.
- If an employment-based petition is denied, and the beneficiary is unlawfully present.
- If a naturalization applicant is also deportable, despite being otherwise eligible.
- If an asylum application referred to EOIR is later terminated or dismissed.
- If the applicant requests an NTA, in rare and limited scenarios.
Notably, USCIS is no longer exempting any category of potentially removable individuals from enforcement.
What Should You Do If You Receive an NTA?
1. Do Not Ignore It
Failing to appear at your scheduled hearing may result in an in absentia removal order. Your clock starts ticking once the NTA is served, so act immediately.
2. Contact a Trusted Immigration Attorney
Receiving an NTA does not mean your case is over. You may still have relief available, such as:
- Filing for adjustment of status,
- Asylum,
- Cancellation of removal,
- Work authorization under compelling circumstances, or
- Motions to reopen/reconsider.
An attorney can help you build a strong defense or prepare for a strategic withdrawal with future immigration eligibility in mind.
3. Understand the Basis of the NTA
An NTA must be based on verifiable facts. For example, if it references criminal charges, ensure they are supported by official conviction records under 8 CFR § 1003.41. If there is a fraud allegation, USCIS must have evidence of misrepresentation in the record.
Proactive Steps: How to Avoid Risk Before Filing or Withdrawing Any Petition
- Evaluate your immigration history and status before filing anything.
- Screen for risk factors: criminal history, past immigration violations, or potential misrepresentation.
- Request FOIAs and background checks in advance, particularly if you’ve had previous interactions with ICE or CBP.
- Use informed consent agreements before filing any benefit application.
- Don’t assume withdrawal prevents NTA issuance. Even if a case is withdrawn, an NTA may still be issued in cases involving fraud or inadmissibility.
A Note on Address Updates
Keep your address updated with USCIS under INA § 265 and 8 CFR 265.1. Failure to do so can result in an NTA being served at an outdated address, causing you to miss your court hearing.
Special Considerations for Humanitarian Applicants (U, T, VAWA)
Even though these categories offer confidentiality protections under 8 U.S.C. § 1367, the memo does not exempt these applicants from NTA issuance. However, compelling cooperation with law enforcement or public interest arguments can be used to request prosecutorial discretion.
Final Thoughts: Take Action, Don’t Panic
The issuance of an NTA during your grace period is alarming but not without remedy. You still have legal options—and with experienced counsel, many individuals in similar situations have gone on to secure valid immigration status.
At Ahluwalia Law Offices, P.C., we are committed to guiding our clients through every phase of removal defense, benefit denial appeals, and strategic filings. If you’ve received an NTA or suspect you’re at risk, book a consultation immediately to understand your path forward.
Need immediate support? Call our Texas-based office or visit ahluwalialaw.com/contact to speak with our experienced team. We’re here to protect your future.
