New Policy of USCIS to Issue Notices to Appear in Court for Employment-Based Denials
Published 9/14/2025 by Jessica White
U.S.C.I.S. announced a policy memorandum on February 28, 2025 that they will now issue Notices to Appear (NTAs) in immigration court for foreign nationals that are within the 60 day grace period after their employment ends. A nonimmigrant visa holder, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TNs, traditionally had one grace period of up to 60 days after their employment ended to find alternative employment or apply for a new status. This grace period was valid for the duration of their petition or 60 days after their termination, whichever was shorter. With the publication of new guidance to adjudicators, these individuals could be considered “out of status” at any time during the 60 days if there are negative factors in their application, including but not limited to:
-
- fraud
- unauthorized work
- criminal conduct
- other nonimmigrant status violations
Key Takeaways for Visa Holders:
- The 60 day grace period for H-1B holders is not guaranteed but is instead discretionary and can be denied by the government
- The government can consider negative factors affecting the foreign national, such as unauthorized work history, criminal conduct, fraud, or other violations of status
- A petition for COE/COS filed during the 60-day grace period is not guaranteed to be approved
- If your petition is denied, you may be out of status and subject to a petition denial or removal proceedings
- Consult with your attorney and file as early as possible to avoid issues with COE/COS petitions after a termination of employment
- H-1B holders can file an extension petition as early as 180 days (6 months) before their H-1B petition expires
Key Takeaways for Employers:
- The 60 day grace period for H-1B holders is not guaranteed but is instead discretionary and can be denied by the government.
- Even if an employee quits, the employer may still be responsible for paying the employer under the Labor Condition Application and the “no benching” provisions under the FMLA
- There are several visa categories that require the employer to sign an LCA, including H-1B (Specialty Occupation), H-1B1 (Chile), and E-3 (Australia) visas.
- Employer must make a bona fide termination of the employee, which includes: (1) explicitly telling the employee they are fired; (2) notifying U.S.C.I.S. of the termination so that they can revoke the petition approval and end the employer’s obligations under the LCA; (3) compensating the employee for return transportation home.
Filing Fee Change: USCIS Will No Longer Accept Checks as of October 28th
Published 9/14/2025 By Jessica White
Beginning on October 28, 2025, U.S.C.I.S. will no longer accept payments by check for any filing fees. Instead, all payments must be made by credit or debit card, or ACH payment. The changes were announced in an August 29, 2025 policy alert. Some practitioners have reported issues with U.S.C.I.S. rejecting credit card payments. This creates an issue because the credit card payments can be rejected by the processing company for any number of reasons, and U.S.C.I.S. will only run the card once before rejecting the credit card payment and the application packet. In the interest of ensuring that our initial filings and extension petitions are accepted, our firm is exploring the best methods to protect client banking data and ensure that filing fees are accepted promptly by the government. Please schedule a consultation if you need any information about the impact of this filing fee change on your current or upcoming immigration filings.
The Corporate Immigration Digest is for information purposes and is not a substitute for legal advice. The circumstances of each situation are unique, and it is important to seek informed legal advice before making any decisions. Please book a consultation with our office at 713-367-1188 to discuss the specific facts of your legal matter. You may also book an appointment online here.
