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USCIS Policy Update: Notices to Appear for Denied Change of Status (COS) and Change of Employer (COE) Petitions

Effective Date: February 28, 2025

On February 28, 2025, U.S. Citizenship and Immigration Services (USCIS) announced a major policy change affecting nonimmigrant visa holders. Under this new guidance, USCIS will now issue Notices to Appear (NTAs) to foreign nationals whose Change of Status (COS) or Change of Employer (COE) petitions are denied.

Background

Previously, individuals in the following visa categories were generally allowed a 60-day grace period (or the time remaining on their I-94, whichever was shorter) to depart the United States or file another petition to extend or change status after employment ended or a petition was denied:

E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN

The new USCIS guidance clarifies that this 60-day grace period is discretionary, not automatic. It may not be granted in cases involving fraud, criminal conduct, unauthorized employment, or other violations of nonimmigrant status.

Key Takeaways for Visa Holders

  • The 60-day grace period for H-1B and other visa holders is not guaranteed.
    Consult with an immigration attorney immediately after a termination or USCIS petition denial to evaluate your legal options.

  • USCIS may weigh negative factors, including unauthorized work, criminal history, or other status violations, when deciding whether to allow a grace period.

  • If your petition is denied, you may be considered out of status and could be subject to removal proceedings.

  • File early. Working proactively with your attorney can help avoid complications with Change of Status or Change of Employer petitions, especially following job loss or resignation.

  • H-1B holders can file extension petitions up to 180 days (6 months) before the current petition expires.

Key Takeaways for Employers

  • The 60-day grace period for H-1B employees is not automatic and should not be relied upon when planning workforce transitions.

  • Even if an employee resigns, employers may still have obligations under the Labor Condition Application (LCA), including compliance with the “no benching” rule.

  • Visa categories that require an LCA include:
    H-1B (Specialty Occupation), H-1B1 (Chile/Singapore), and E-3 (Australia).

  • To properly end LCA obligations after terminating an employee, employers should:

    1. Notify the employee in writing of the termination;

    2. Inform USCIS to revoke the petition approval;

    3. Offer or pay for return transportation to the employee’s home country.

What This Means

This policy change increases the risk of immediate out-of-status periods and potential removal proceedings for visa holders following a petition denial. Both employees and employers should take extra care to plan ahead and ensure all filings are submitted accurately and early.

Schedule a Consultation

If you have questions about how this new USCIS policy may affect your immigration status or your company’s compliance obligations, contact our office today.

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