On September 11, 2026, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that could fundamentally alter the landscape for hundreds of thousands of employment-based nonimmigrant workers in the United States.
The proposal, titled "Eliminating the Discretionary 60-day Grace Period," was signed by DHS Secretary Markwayne Mullin and carries DHS Docket No. USCIS-2026-0364 (RIN 1615-AD22). It would strike 8 CFR 214.1(l)(2) from the federal regulations
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the single paragraph that currently allows a nonimmigrant worker whose employment ends mid-petition to remain in the United States for up to 60 days without being treated as out of status.
Comments are due 60 days after publication, putting the deadline at November 10, 2026.
What Is the 60-Day Grace Period?
The 60-day grace period was implemented in 2016 by regulation and formally went into effect in 2017. Prior to this regulation, no such grace period existed.
Since 2017, eligible H-1B workers who lose their jobs have generally been granted up to 60 days — or until the end of their authorized stay, whichever comes first — to find a new sponsoring employer, change immigration status, or depart the United States. The policy was introduced to provide workers with a reasonable period to address an unexpected employment termination without immediately falling out of status.
The provision currently allows USCIS, in its discretion and once per authorized validity period, to permit a worker to remain in the United States for up to 60 consecutive days after the qualifying employment ceases. It covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN principals, along with dependent spouses and children under 21.
What DHS Is Proposing — and Why
The purpose of the proposed rule is to remove the availability of the grace period from the regulations. DHS argues that it "disconnects the alien's lawful status from the very basis of eligibility" for these classifications, since by statute a nonimmigrant's status is directly connected to and contingent upon specific employment activities generally tied to a petitioning employer.
DHS offers two primary justifications.
The first is statutory alignment: the agency says the grace period "disconnects the alien's lawful status from the very basis of eligibility" for classifications that tie status to a specific employer or activity.
The second is administrative burden. DHS states that between October 1, 2017, and May 20, 2026, more than 1.9 million petitions and applications potentially required a grace-period assessment, and that verifying termination dates and exercising discretion on those cases is burdensome.
The agency considered and rejected three alternatives: eliminating the grace period for only some classifications, shortening it rather than removing it, and imposing stricter evidentiary requirements.
Critics dispute these rationales.
Attorneys and analysts find the "negative impacts" on the legal immigration system that DHS cites in the rule notice are not supported by evidence.
As one immigration attorney noted in Forbes, "Eliminating the grace period does not eliminate discretionary adjudication;
it simply shifts where and how that discretion is exercised."
Immediate Impact on Workers and Families
If finalized as written, the rule would mean that an H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3, or TN worker, along with that worker's spouse and children, would be considered to have failed to maintain status the day after employment ends and would be expected to depart the United States immediately unless separately authorized to remain.
The scale of potential disruption is enormous.
There are approximately 600,000 to 730,000 active H-1B visa holders in the United States, with an estimated 550,000 dependents on H-4 visas.
DHS estimates that an annual average of 65,752 primary beneficiaries experienced cessation of employment or changed employers, with 328,758 over a five-year period — and that 99 percent of that group was in H-1B status.
H-1B visa holders who lose their jobs may need to leave the country immediately. For workers with families, mortgages, school-enrolled children, or pending green card processes tied to their current employer, that compression carries real consequences beyond immigration paperwork.
H-4 and L-2 status ends derivatively, and so do any H-4 or L-2 Employment Authorization Documents (EADs) that depend on it.
The H-1B Portability Question
One of the most consequential gaps in the proposal concerns H-1B portability — the mechanism that allows H-1B workers to begin working for a new employer once a transfer petition is filed.
H-1B portability under INA 214(n) is statutory and is not amended by this rule. However, the preamble is not clear about how a terminated worker who is no longer "maintaining status" but whose I-94 has not expired should be treated for portability, extension of stay, or change of status purposes. That ambiguity is one of the more consequential gaps in the proposal.
Currently, an employee laid off from an H-1B has up to 60 days during which a new employer can file a change-of-employer petition with a request for extension of stay, and the employee can start work on receipt under portability. Remove the grace period and status ends on the last day of employment, meaning a petition filed the following day cannot carry a valid extension or change-of-status request. The new employer's only reliable route then becomes consular processing — a departure, a visa appointment, and whatever administrative processing follows.
Impact on Employers
Eliminating the 60-day window would also add financial burdens for companies that terminate foreign workers, because they are required to pay for the costs of transportation to an employee's home country.
Eliminating the grace period would also increase the practical leverage of employers over foreign-born workers by narrowing their alternatives, according to immigration attorneys.
The measure would make working in H-1B status more precarious and tie H-1B professionals more closely to their current employers. It may also discourage highly skilled individuals from choosing to work in the United States.
Broader Context
Eliminating the 60-day grace period conforms to a pattern. The administration has proposed or implemented several restrictions on high-skilled foreign nationals, including a recent proposed rule that may change prevailing wage levels and another that would introduce additional H-1B restrictions. On August 25, the administration proposed a $103,265 fee on all petitions subject to the H-1B annual limit.
Despite concerns, immigration attorney Dan Berger believes the rule will likely survive court challenges, calling it "just another slice in the death by a thousand cuts to our employment-based immigration system."
What You Should Do Now
The current 60-day grace period remains in effect.
There is no change at this time. The current rule remains in effect unless and until DHS completes the rulemaking process and issues a final rule with an effective date.
Here is what affected workers and employers should consider:
- Submit public comments by November 10, 2026.
- Consult with an immigration attorney to understand how the proposed change could affect your specific situation, including any pending petitions, portability filings, or change-of-status applications.
- Employers should review offboarding processes and develop contingency plans for foreign national employees in the event the rule is finalized.
- Workers should explore backup immigration strategies — including understanding whether they may be eligible for a change of status or whether their green card process might provide a safety net.
DHS is legally required to review and respond to substantive public comments before finalizing any rule.
Every comment submitted during this period can influence the outcome. We will continue to monitor this proposed rule and provide updates as the rulemaking process moves forward.
This article is provided for informational purposes and does not constitute legal advice. If you have questions about how this proposed rule may affect your immigration status, please contact our office for a consultation.