The Department of Homeland Security has published a formal proposal that would eliminate the 60-day grace period currently available to many nonimmigrant workers—including those in H-1B, L-1, O-1, TN, E-1, E-2 and E-3 status—after their employment ends. The notice of proposed rulemaking appeared in the Federal Register on September 11, 2026, opening a public comment period that runs through November 10, 2026.
Under the existing regulation, covered workers and their dependents are not considered to have failed to maintain status solely because employment ends, for up to 60 consecutive days or until the authorized validity period ends, whichever comes first. DHS may shorten or eliminate the period in its discretion. The proposed repeal has not taken effect, and the grace period itself does not authorize employment.
What the Proposed Rule Would Change
The current regulation, found at 8 CFR 214.1(l)(2), allows DHS to grant eligible nonimmigrant workers a grace period of 'up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter,' available once per authorized validity period. The regulation also makes clear that this benefit is discretionary, stating that 'DHS may eliminate or shorten this 60-day period as a matter of discretion.'
The newly published proposal would remove that grace-period provision altogether. If finalized as written, workers whose employment ends would no longer have this discretionary grace period during which they remain in valid nonimmigrant status while searching for new employment or an alternative lawful basis to stay.
Why DHS Says the Change Is Needed
According to the rulemaking materials, DHS frames the proposal around the statutory link between nonimmigrant status and continued qualifying employment, along with administrative burden considerations. The agency's published rationale is an argument supporting its proposed policy choice—it is not a judicial ruling or a definitive statement of how courts would interpret the underlying statute.
DHS's own materials acknowledge that eliminating the grace period could create reliance costs for workers and their families, as well as disruption for employers who depend on timely transfers or extensions. These acknowledged trade-offs are part of why the agency is soliciting public comments before deciding whether, and how, to finalize any changes.
Who Could Be Affected
The current grace period applies to a specific set of nonimmigrant categories, including H-1B, H-1B1, L-1, O-1, TN, E-1, E-2, E-3 workers and their dependents. It does not apply uniformly to all visa categories—for example, it is distinct from the separate post-completion grace period available to F-1 students.
Workers in the affected categories who experience a layoff, termination, or employer closure during the period this rule is pending should understand that no change has yet taken effect. The current 60-day framework, including DHS's discretion to shorten or eliminate it case-by-case, remains in place unless and until a final rule is published with its own effective date.
Timeline and What Happens Next
The Federal Register notice specifies that written comments on the proposed rule must be submitted on or before November 10, 2026. After the comment period closes, DHS is required to review and respond to substantive comments before it can issue a final rule. There is no confirmed effective date for any final version of this rule, and the agency could modify, narrow, or abandon elements of the proposal in response to comments.
Because the rulemaking process has not concluded, workers and employers should not assume this proposal reflects current law. A final rule’s effective date and any transition provisions would have to be read from the actual published text; neither should be assumed from the proposal.
Practical Steps for Workers in Affected Categories
Immigration attorneys generally advise that workers in H-1B, L-1, O-1, TN and similar categories who face job loss should document the exact date their employment ended and review their Form I-94 authorized end date immediately, since the current grace period calculation depends on both figures. A new job offer alone does not restore or extend status—additional filings are typically required.
Because the grace period is currently discretionary and could be shortened in individual adjudications even under existing rules, affected workers should not assume a full 60 days will automatically apply in every case. Consulting with qualified counsel promptly after a termination remains the most reliable way to understand available options under current regulations.
Different deadlines should be kept separate
The rule also covers H-1B1 workers and qualifying dependents. A family should examine each person’s case record rather than assuming that an employment grace period resolves every status or work-permission question. Student post-completion periods arise under different provisions and are not the same protection described here.
Loss of status, accrual of unlawful presence, and removal are also distinct legal concepts. None should be treated as an automatic conclusion from a headline about this proposal. The relevant dates and rules must be evaluated for the particular worker and filing.
Clinch Law Legal Analysis
Sources
- https://www.envoyglobal.com/news-alert/uscis-advances-proposal-to-eliminate-discretionary-60-day-grace-period-for-certain-nonimmigrant-workers/
- https://www.fragomen.com/insights/united-states-dhs-to-propose-elimination-of-60-day-nonimmigrant-grace-period.html
- https://www.govinfo.gov/content/pkg/FR-2026-09-11/pdf/2026-18631.pdf
- https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/subpart-A/section-214.1
This article provides general information and does not constitute legal advice. Immigration outcomes depend on individual facts and current law.
For a worker who has just lost a job, the immediate task remains checking the last employment date and the authorized validity end date shown in the case record. The current protection is up to 60 consecutive days, not a guaranteed extra two months beyond an expiring authorized period. It also does not itself permit continued work. A new offer is therefore only one part of the plan: the worker must examine what filing and work authorization are needed for the next step.
The September proposal changes the planning risk, not the regulation already in force. Employers can assess how eliminating the window would affect recruiting and termination procedures, while workers and families can submit concrete examples during the comment period. But neither side should act as though the proposed repeal is already effective or assume the final text must match the draft. DHS acknowledges reliance concerns while advancing its employment-linked rationale; the legal and practical outcome depends on further rulemaking and any subsequent controlling developments.
Questions Clients Are Asking#
Has the 60-day grace period already been eliminated?
No. As of this proposal's publication, the grace period remains in effect under 8 CFR 214.1(l)(2). DHS has only published a notice of proposed rulemaking; no final rule or effective date has been issued, so current regulations continue to apply.
Can I still submit comments on this proposed rule?
Yes, if the comment period remains open. The Federal Register notice states that written comments must be submitted on or before November 10, 2026. Comments can address potential impacts on workers, employers, and families. Use the docket instructions and submit before the stated deadline rather than assuming an extension.
Does a new job offer protect my status after termination?
Not automatically. A job offer alone does not restore lawful status or work authorization. Workers typically need additional filings, such as a new petition, and must track their documented termination date against their I-94 authorized end date.