A proposed regulation that could strip H-1B workers and other employment-based visa holders of a critical safety net after job loss has cleared a key regulatory hurdle, bringing it one step closer to becoming law.
The Department of Homeland Security (DHS) is moving forward with a proposed rule that could eliminate the discretionary 60-day grace period currently available to certain nonimmigrant workers following the termination of employment. On August 27, the White House Office of Information and Regulatory Affairs (OIRA) completed its review of the DHS proposed rule titled "Eliminating the Discretionary 60-day Grace Period," clearing the way for DHS to publish the proposed rule in the Federal Register.
The federal record now lists the review as complete, with the outcome "Consistent with Change," though it still identifies the action as a proposed rule and lists no publication date.
What Is the 60-Day Grace Period?
The 60-day grace period was created by regulation in 2016 and took effect in early 2017. Under the rule, E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants and their dependents are not considered to have failed to maintain nonimmigrant status solely because the principal's employment ceased. The grace period lasts for the shorter of 60 days or until the principal's I-94 expiration date, and it is available once during each authorized petition validity period.
The grace period was instituted to mitigate the negative immigration consequences of employment loss.
Within that window, an affected worker can look for a new employer in the same category, pursue a change of status, or simply wind down their affairs and prepare to depart, without immediately falling out of status.
The 60-day grace period was introduced through a rule finalized during the Obama administration in late 2016 and became effective on January 17, 2017, just before President Obama left office. Before that, there was no formally established 60-day regulatory grace period following loss of employment. The H-1B program had existed since 1990 without this provision.
What Has Happened So Far
On August 6, 2026, the agency sent the proposal, titled "Eliminating the Discretionary 60-day Grace Period" (RIN 1615-AD22), to the White House's Office of Information and Regulatory Affairs (OIRA) for review.
OIRA finished its review on August 27, 2026, so publication is the next step, but the specific provisions, including exactly what would replace the current grace period, are not yet known.
The contents of the proposed rule are not public yet.
The next step is publication in the Federal Register for a public comment period, typically 30 or 60 days.
DHS must first publish the proposed rule in the Federal Register, after which the public will have an opportunity to comment. DHS would then need to consider those comments and issue a final rule before any regulatory change could take effect.
What Has NOT Changed
Immigration practitioners are urging workers not to panic.
This does not mean the 60-day grace period has already ended. The measure is still a proposed rule and must move through additional steps before a change can take effect.
Clearing OIRA review is an important step in the federal rulemaking process, but it does not make the proposal law or immediately change existing immigration regulations.
As of August 27, 2026, the 60-day grace period remains available. DHS submitted a proposed rule to OIRA on August 6, 2026, and OIRA cleared it on August 27, but the rule has not been published, has not gone through public comment, and is not final. H-1B workers whose employment ends today are generally still able to use up to 60 days to find a new sponsoring employer, change status, or depart the United States.
Who Would Be Affected
If finalized, this would affect H-1B, H-1B1, L-1, O-1, TN, E-1, E-2, and E-3 workers, and it would sharply compress the timeline HR teams have to manage layoffs and offboarding for foreign national employees.
If the discretionary 60-day grace period is eliminated, foreign nationals whose employment ceases prematurely (and their dependents) would no longer be maintaining status and would generally be required to depart the United States immediately.
That could also block in-country filings. Workers might be unable to submit an H-1B transfer or change-of-status request from inside the country because they would no longer be maintaining status when they filed.
The 60-day grace period has been particularly important for H-1B professionals in the technology sector, where layoffs can happen suddenly.
For Indian professionals, who make up a large share of H-1B workers, the impact could be significant.
Reactions From the Immigration Community
Immigration attorney Ana Gabriela Urizar of Manifest Law underscored the human stakes.
"The 60-day grace period gives H-1B workers a critical window to find a new employer and continue the lives they have built in the United States. These are individuals who may have mortgages or leases, car payments, and children enrolled in school," she says.
Immigration attorneys and advocacy groups are closely monitoring developments, as the proposal could represent one of the most consequential changes to employment-based immigration policy in recent years.
Removing the grace period could make employment transitions much harder. Employers could have less opportunity to recruit people who are already in the United States but whose previous employment has ended.
The proposal fits a wider pattern of compressing the timeframes available to foreign workers and students.
What H-1B Workers and Employers Should Do Now
While no immediate action is legally required, immigration experts are recommending proactive planning.
Employers and individuals should start reviewing offboarding processes and contingency plans now, before any rule takes effect.
Foreign nationals contemplating a change in employment should likewise seek immigration advice promptly rather than relying on the availability of the full 60-day period.
DHS has the discretion to refuse or shorten the grace period but rarely did so until recent months, with grace period refusals becoming more common.
This trend alone suggests that workers should not take the current grace period for granted, regardless of whether the proposed rule is finalized.
Practical steps for workers include:
- Maintain up-to-date immigration documentation at all times, including copies of your I-94, approved petitions, and employment verification letters.
- Build a professional network proactively to facilitate faster job transitions if needed.
- Consult with an immigration attorney to understand your specific options for maintaining status, including potential change-of-status pathways.
- Monitor the Federal Register for publication of the proposed rule and consider submitting a public comment during the comment period.
As one immigration law firm cautioned, "'not yet law' is not the same as 'not worth preparing for.' Rules like this can move from OIRA review to a published proposal, and eventually a final rule, faster than employers expect. The comment period, when it comes, is typically the last real opportunity to weigh in before the change becomes binding."
The Road Ahead
Once OMB completes its review, the proposed rule will be published in the Federal Register and will be open to public comment for a period of thirty to sixty days. Following this period, there is a possibility that the agency may withdraw or abandon the proposal based on public comment. If the rule proceeds to final rulemaking, it will likely take several months to be finalized and take effect.
The proposal represents a significant signpost in the administration's broader approach to employment-based immigration.
The proposed elimination of the 60-day grace period marks a potentially significant shift in how the United States manages employment-based immigration.
ClinchLaw will continue to monitor developments as DHS moves toward publication and will provide updates when the full regulatory text becomes available. In the meantime, affected workers and employers should consult experienced immigration counsel to evaluate their individual circumstances and develop contingency plans.
This article is for informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a qualified immigration attorney.