On September 11, 2026, the U.S. Department of Homeland Security (DHS) formally published one of the most significant proposed changes to employment-based immigration policy in recent years.
The proposed rule, published in the Federal Register at 91 FR 57807, would remove a critical safeguard that has given thousands of skilled workers breathing room to find new employment, adjust their status, or make arrangements to depart the United States in an orderly fashion.
The public comment period is open through November 10, 2026, giving immigrants, employers, and advocates a narrow window to make their voices heard.
What the Proposed Rule Would Do
The proposal, carrying DHS Docket No. USCIS-2026-0364 (RIN 1615-AD22), 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.
Background: The Origins of the 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.
The grace period was instituted to mitigate the negative immigration consequences of employment loss. It allows affected individuals to seek other employment in the same nonimmigrant category or change status without the need to depart the United States, or to prepare for departure.
The current provision 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 employment or activity underlying the classification ceases, or until the end of the petition validity period, whichever is shorter. 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.
DHS's Justification
DHS offers two primary rationales for the proposed elimination.
First, 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.
Scale of the Impact
The numbers underscore the scope of this proposal.
The agency has not elaborated on how the change would affect the estimated 600,000+ H-1B visa holders currently in the United States or their dependents.
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. Over that period, just under 6% had a new employer file to sponsor them within that window, while another 1.7% of workers filed to extend or change their status, the agency said.
Companies recruiting at U.S. universities find that international students account for approximately 75% to 80% of full-time graduate students in AI-related fields, such as computer and information sciences.
Eliminating the grace period may also discourage highly skilled individuals from choosing to work in the United States.
Attorney and Industry Reactions
Immigration attorneys have raised significant concerns about the proposal's legal foundations and practical consequences.
Analysts and attorneys consider DHS's assertion that ending the 60-day grace period would ease the administrative burden misleading or mistaken.
Immigration attorney Ana Gabriela Urizar of Manifest Law highlighted the human toll:
"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."
Attorney Dan Berger offered a more pragmatic, if somber, assessment.
Despite finding DHS's cited negative impacts unsupported by evidence, Berger believes the rule will likely survive court challenges: "I would expect this one to stick. It is just another slice in the death by a thousand cuts to our employment-based immigration system."
One law firm noted the proposed rule is expected to draw a significant number of comments and, if finalized in its current form, major legal challenges, particularly over inadequate treatment of reliance interests.
Attorneys say the proposed rule may be harder to block than other administration measures. Still, DHS would need to overcome the argument that visa holders and employers have "reliance interests" DHS has not accounted for in the rule.
What Has Not Changed — Yet
It is critically important for affected workers and employers to understand the current status of this proposal.
This is still a proposed rule. It has not taken effect, and the current 60-day grace-period regulation remains in place.
The rule will not take effect until DHS reviews public feedback and issues a final rule with a specific implementation date.
That process typically takes several months at a minimum.
Practical Steps for Affected Workers and Employers
For workers currently in H-1B, L-1, O-1, E, or TN status, and for the employers who sponsor them, the publication of this NPRM should serve as a call to action — not a cause for panic.
Submit public comments.
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 deadline is November 10, 2026.
Review contingency plans.
If finalized, this would sharply compress the timeline HR teams have to manage layoffs and offboarding for foreign national employees. Employers and individuals should start reviewing offboarding processes and contingency plans now, before any rule takes effect.
Consult with immigration counsel. Workers should explore backup strategies — including change-of-employer petitions, change-of-status applications, or alternative visa pathways — with a qualified immigration attorney well before any job transition occurs.
Immigration advocacy organizations like the American Immigration Lawyers Association (AILA) are closely tracking this proposed rule and are expected to file detailed comments. Employers who rely on foreign national workers may also want to submit comments explaining the operational impact this rule would have on their businesses.
The Bottom Line
The DHS proposal to eliminate the 60-day grace period is one of the most consequential immigration policy changes proposed in recent years for employment-based nonimmigrant workers.
While the rulemaking process ensures that this change cannot take effect overnight, the proposal signals a clear direction from the current administration. Affected individuals and stakeholders should treat the November 10 comment deadline as an urgent priority.
This article is for informational purposes only and does not constitute legal advice. If you are affected by this proposed rule, consult with a qualified immigration attorney to discuss your specific situation.