FS-2025-0001-391782

I oppose the proposed elimination of 8 C.F.R. § 214.1(l)(2). My concern is not simply that eliminating the 60-day grace period would create hardship. The more fundamental problem is that the proposal appears to rely on an incorrect administrative premise: that eliminating the grace period will simplify adjudication by eliminating difficult inquiries into when employment ceased. It does not eliminate that inquiry. It makes the inquiry more consequential. Under the current rule, uncertainty of several days regarding the date employment ceased is often absorbed within a grace period of up to 60 days. Under the proposed rule, the same uncertain factual determination would become the dividing line between maintenance of status and immediate failure to maintain status. In other words, the proposal converts a timing problem with a tolerance interval into a timing problem with a legal cliff. DHS itself recognizes in the NPRM that the date employment ceased may be difficult to determine and that payroll or other employment records may not always establish a definitive last day of employment. Yet the proposed rule would make the day after that uncertain event legally dispositive. That raises three questions that should be addressed before the rule is finalized. First, what exactly constitutes “cessation of employment” for purposes of the proposed rule? Employment does not always end through a single, uniform event. An employee may receive advance notice of termination, stop performing productive work while remaining on payroll, enter a paid notice period, use accrued leave, remain on benefits, or receive salary continuation or severance. The date duties end, the date payroll ends, the employer-designated termination date, and the date immigration-related notice is provided may differ. If DHS intends immediate failure to maintain status to occur after “cessation,” the triggering event should be defined with sufficient precision that workers, employers, adjudicators, and reviewing courts can identify the same date prospectively. Second, has DHS evaluated the increase in adjudicative error costs created by eliminating the grace period? Under the present framework, a disagreement of several days concerning the termination date frequently does not alter the outcome because the subsequent filing remains within the 60-day period. Under the proposed framework, even a one-day error could become outcome-determinative. The underlying evidentiary problem therefore remains, while the legal consequence of error becomes substantially greater. If DHS believes the proposal will reduce administrative burden, it should explain why converting an uncertain date into an immediate status cutoff will not instead increase disputes over termination dates, requests for evidence, and the need for precise factual reconstruction. Third, DHS should distinguish between eliminating a grace-period calculation and eliminating the underlying timing problem. Even after repeal, USCIS may still need to determine precisely when employment ended whenever maintenance of status is relevant to a later petition or application. The agency would no longer ask whether a filing occurred within 60 days, but it may need to answer a harder question: exactly when did lawful maintenance of status cease? That is not necessarily administrative simplification. It may instead be a transfer from a forgiving timing inquiry to a high-consequence day-zero inquiry. This issue also bears on DHS’s broader rationale that employment-based nonimmigrant status should remain closely connected to qualifying employment. Even assuming DHS may reasonably adopt that policy objective, it does not follow that a zero-day transition is operationally necessary. There is a meaningful distinction between saying that employment is the basis of a classification and saying that any factual cessation of employment must produce immediate failure to maintain status without a transitional interval. If immediate cessation is a policy choice rather than a statutory requirement, DHS should evaluate the administrative consequences of that choice directly rather than treating them as inherent in the structure of the statute. For these reasons, I respectfully request that DHS not finalize categorical elimination of the grace period on the present record. At minimum, DHS should first: 1. define an administrable event that constitutes “cessation of employment”; 2. evaluate how often that event can be identified reliably from existing records; 3. assess the error costs created when uncertainty regarding that event immediately determines maintenance of status; and 4. demonstrate that eliminating the grace period actually reduces net adjudicative burden rather than merely making the same factual determination more consequential.