The Department of Homeland Security has taken its most significant step yet toward dismantling a critical safety net for foreign workers in the United States.
DHS has published a proposed rule that would eliminate the current discretionary 60-day grace period available to certain employment-based nonimmigrants following the end of their employment.
The proposed rule is scheduled for publication in the Federal Register on September 11, 2026, which will trigger a 60-day public comment period.
The move represents one of the most consequential changes to employment-based immigration policy in recent years — and one that could upend the lives of tens of thousands of skilled workers and their families.
What the Rule Would Do
The proposal, titled "Eliminating the Discretionary 60-day Grace Period" and signed by Secretary Markwayne Mullin, carries DHS Docket No. USCIS-2026-0364 (RIN 1615-AD22) and would strike 8 CFR 214.1(l)(2) from the regulations.
That single paragraph is what 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.
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.
Some could also face immigration enforcement proceedings, including the issuance of a Notice to Appear in immigration court.
The Current Grace Period — and Why It Matters
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 grace period itself is a relatively young creation. It was established by a DHS regulation in 2016 and took effect in early 2017. Before that, laid-off workers were considered out of status the moment their employment ended, so DHS's current proposal would essentially restore the pre-2017 status quo.
Immigration attorney Ana Gabriela Urizar of Manifest Law warned that removing the grace period would create devastating consequences for workers who have established deep roots in the country, noting that "these are individuals who may have mortgages or leases, car payments, and children enrolled in school."
DHS's Justification
DHS has offered two primary rationales for the change.
The first is statutory alignment: each covered classification is defined by reference to specific employment or activity, so DHS now believes lawful status should end when that employment ends.
The second is administrative burden. DHS counted over 1.9 million petitions and applications from FY 2018 through May 2026 on which adjudicators potentially had to assess whether the grace period applied, and concludes it should not spend limited resources on a discretionary benefit Congress did not require.
The DHS proposal acknowledged that many workers affected by the policy change have likely purchased homes, paid taxes, and made other investments in their local communities. But it said administrative burdens created by the grace period outweighed benefits to workers and employers.
DHS considered alternatives, including shortening the grace period or eliminating it only for certain visa classifications, but ultimately proposed removing the provision more broadly. The agency said it believes the government's interest in enforcing the requirements of nonimmigrant status outweighs the potential negative effects on workers and employers.
By the Numbers
DHS estimates a yearly average of 65,752 workers covered by the 60-day grace period experienced a job loss or changed employers between 2021 and 2025.
In fiscal year 2025, DHS issued 37 Notices to Appear to H-1B beneficiaries based on failure to maintain nonimmigrant status beyond the existing grace period. The agency expects only a marginal increase in such cases if the grace period is eliminated.
What Happens Next
This is not yet a final rule. The proposed rule is scheduled for publication in the Federal Register on September 11, 2026, which will trigger a 60-day public comment period. DHS will review public comments before determining whether to issue a final regulation.
Comments are due 60 days after publication. Based on the September 11, 2026 publication date, that puts the deadline at November 10, 2026.
Comments must be filed through the Federal eRulemaking Portal at regulations.gov under DHS Docket No. USCIS-2026-0364. USCIS is not accepting comments by mail, email, hand delivery, courier, or on digital media.
The new regulations are expected to come into effect by late 2026 or early 2027
if the rule is finalized. However, the public comment period and DHS's review of those comments could extend that timeline.
Practical Implications for Workers and Employers
The stakes are enormous — and immediate planning is advisable even though the rule is not yet final.
A worker who loses employment may need to interview, secure an offer, and coordinate an immigration filing with a new employer while also managing the financial consequences of a layoff. Removing the grace period could make those transitions much harder.
Finding a new sponsor quickly would not be easy even without the compressed timeline, particularly for workers seeking a cap-subject H-1B visa.
The grace-period proposal lands amid a string of other DHS moves this year that have already rattled employers who rely on skilled foreign labor. In August, DHS proposed a separate rule setting a $103,265 fee for cap-subject H-1B petitions.
For employers, the implications are equally significant.
Eliminating that window could complicate workforce transitions and increase the urgency surrounding layoffs involving foreign national employees.
Companies with large H-1B, L-1, or TN populations — particularly in the technology, healthcare, and consulting sectors — will need to fundamentally rethink their offboarding and internal-transfer protocols.
What Workers Should Do Now
While the current 60-day grace period remains fully in effect, immigration attorneys are urging affected workers to begin contingency planning immediately. Key steps include:
- Consult an immigration attorney to evaluate your individual situation and identify backup options.
- Review H-1B portability rules, which may allow you to begin working for a new employer after a qualifying petition is properly filed.
- Consider filing a change of status proactively if you have concerns about job stability.
- Submit public comments during the 60-day comment period to make your voice heard in the rulemaking process.
- Monitor developments closely as the rule progresses toward finalization.
Once the proposal is published, feedback from employers will be important to inform the government of the impact of the proposal on the business community.
Workers and advocacy groups are likewise encouraged to weigh in.
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This article is for informational purposes only and does not constitute legal advice. If you are an H-1B, L-1, O-1, TN, or E-category visa holder concerned about how this proposed rule may affect your immigration status, contact an experienced immigration attorney to discuss your specific circumstances.