DHS Proposes Ending the 60-Day H-1B Grace Period

By The Immigration Compass | Published 2026-09-10

DHS has proposed eliminating the 60-day grace period for H-1B, L-1, O-1, E, and TN workers after job loss. Here's what's changing, and what isn't, yet.

The Department of Homeland Security is scheduled to publish a proposed rule on September 11, 2026, that would eliminate the up to 60-day discretionary grace period currently available to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status after their job ends. This is only a proposal. Nothing has changed yet, and the current grace period rules remain in effect unless and until a final rule takes effect. If you're in one of these visa categories, or you're planning your path toward one, here's what the proposal says and what's still uncertain.

What DHS is proposing to change

The proposal targets one specific regulation: 8 CFR 214.1(l)(2). That's the section that currently gives USCIS discretion to let certain workers remain in the U.S. for up to 60 days, or until their authorized period of stay ends, whichever comes first, after their qualifying employment or activity stops. During that window, they are not automatically considered to have failed to maintain status solely because the employment ended.

DHS created this grace period through rulemaking in 2016, and it took effect in January 2017. Before that, there was no such cushion under this provision. DHS's stated position in the proposal is that removing it would better align the regulations with the underlying statute and reduce administrative burden on USCIS. DHS acknowledges in the proposal that it is reversing its 2016 position and lays out its reasoning for doing so, including that the agency now believes the original justification didn't fully account for the misalignment with statute or the added administrative burden.

Who this could affect

The proposal covers eight nonimmigrant classifications and their dependents: E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN. DHS's own data suggests that H-1B workers account for about 99 percent of the primary beneficiaries in its FY2021 through FY2025 proxy population of workers who experienced job cessation or changed employers. DHS notes this is a proxy, built from Form I-129 withdrawal data, not a direct count of everyone who actually used the grace period. Still, it's a strong signal that the practical, real-world impact of this proposal would land mostly on H-1B workers and their families, even though the rule is written to cover all eight categories.

Dependents in H-4, L-2, E, O-3, and TD status are generally tied to the primary visa holder's status. Because of that, the proposal could also affect these dependents if the principal worker's qualifying employment or activity ends, since their status follows the principal's.

A note on H-1B portability

H-1B workers have an additional tool that some of the other categories in this proposal don't: portability. Under existing H-1B portability rules, an eligible H-1B worker can generally begin working for a new employer upon the proper filing of a qualifying, nonfrivolous H-1B petition, without waiting for approval. This is a separate statutory provision and is not something the proposed rule changes directly. The practical interaction between H-1B portability and the proposed elimination of the grace period may be an important issue for employers and workers to consider, particularly if employment ends before a new petition has already been filed. Because portability generally isn't available in the same way for E, L-1, O-1, or TN categories, the practical impact of losing the grace period may differ meaningfully between H-1B and the other classifications covered here.

What this proposal does not touch

This proposal is specifically about the employment-cessation grace period under 8 CFR 214.1(l)(2), the provision tied to a job ending before a worker's authorized period of stay expires. It's a separate question from what happens when a worker's authorized period of stay (reflected on their Form I-94) simply reaches its own expiration date on its own terms, unrelated to job loss. That is governed by different regulatory provisions that this proposal does not amend.

We'd caution against assuming this automatically means every worker in every category gets extra days after their I-94 expires. The rules around admission periods, extensions, and any short grace periods tied to the end of an authorized stay vary by classification and by circumstance. If you have questions about your specific I-94 expiration or admission period, that's worth discussing directly with an immigration professional rather than relying on a general rule of thumb.

What options would still exist

The proposal would not eliminate every immigration option available after employment ends, but it would largely eliminate the discretionary period in which a worker can rely on the employment-cessation grace period while pursuing those options. Depending on eligibility, a worker (or a new employer, in some cases) could still:

• Have a new employer file a qualifying nonimmigrant worker petition (Form I-129), where applicable
• Apply for a change of status, where eligible, using the appropriate form (such as Form I-539)
• File for adjustment of status, if eligible (Form I-485)
• Request a compelling circumstances work permit, in limited situations (Form I-765)

Filing one of these forms does not, by itself, automatically mean a person is authorized to remain in or work in the U.S. after their status has lapsed. Eligibility and timing matter, and outcomes depend on individual facts. Under the current rule, the 60-day window gives some breathing room to pursue these options. Under the proposal, that discretionary cushion would generally not be available, which raises the practical stakes of acting quickly and having documentation and next steps ready before employment ends, not after.

Where things stand in the process

This is a Notice of Proposed Rulemaking, not a finished regulation. The NPRM provides for a 60-day public comment period after the rule is formally published in the Federal Register, and the proposal cannot take effect unless DHS ultimately issues a final rule with an effective date. Based on a September 11, 2026 publication date, that comment window would close around November 10, 2026, but we'd treat that as an expected date rather than a confirmed one. The official Federal Register notice should be checked for the exact, final deadline once it's published.

Anyone affected by this, including employers, can submit a comment through the Federal eRulemaking Portal at regulations.gov, referencing DHS Docket No. USCIS-2026-0364.

Making a comment that actually carries weight

If you decide to file a comment before the deadline, specific, fact-based comments give DHS more concrete information to consider than general statements of opposition.

• Employers can describe their actual experience: how often they handle terminations and rehires while a worker's authorized validity period is still in effect, what it costs when a worker has to consular process from abroad instead of transitioning domestically, how long visa appointment wait times run at the posts their workforce uses, and what happens to project timelines and client commitments when a role sits empty for weeks or months. Numbers and specific examples strengthen a comment considerably
• Workers and family members can describe the plans they've built around the current rule, things like a mortgage, a lease, a child's school year, a spouse's job, a pending green card case, or a child approaching 21. DHS has stated that reliance on the grace period would be "misplaced." Comments from people actually living with that reliance are part of what tests whether that's true
• If you'd support a narrower change rather than full elimination, say so directly. DHS considered and rejected a partial elimination, a shortened grace period, and stricter evidentiary requirements as alternatives. A comment that argues for one of those alternatives specifically puts that option on the record for DHS to consider
• It also helps to address the open questions the proposal doesn't clearly resolve: how it interacts with H-1B portability, how it could affect the timing of compelling-circumstances EAD filings, the absence of any transition period for workers already in the U.S., and whether the data DHS is relying on actually reflects grace period usage

Comments must be submitted through the Federal eRulemaking Portal at regulations.gov, referencing DHS Docket No. USCIS-2026-0364. USCIS is not accepting comments by mail, email, or hand delivery. All submissions are posted publicly, including any personal information included, so it's worth thinking through what you include.

Nothing has changed yet

• The current up to 60-day discretionary grace period remains in place today. This proposal has not taken effect
• This is a proposed rule, not a final rule, and DHS could modify, withdraw, or finalize it following the comment process
• There is no confirmed final outcome or effective date at this time
• Individual immigration situations vary, so this article isn't a substitute for case-specific advice

If you're currently employed on one of these visas, this proposal doesn't affect you today. But if your job situation feels uncertain, or you're already thinking about a change of employer or status, it's worth having that conversation sooner rather than later, so you understand your options under the rules as they currently stand and how a final rule, if one is issued, might affect your plans.