The U.S. Department of Homeland Security posted a proposed rule on 10 September 2026 to scrap the discretionary 60-day grace period for many employment-based nonimmigrants after a job ends. The notice titled Eliminating the Discretionary 60-day Grace Period is scheduled for Federal Register publication on 11 September 2026 under DHS Docket No. USCIS-2026-0364 (RIN 1615-AD22). Secretary Markwayne Mullin signed the proposal. Public comments run for 60 days after publication, with a practical deadline near 10 November 2026 on regulations.gov.
If DHS finalizes the text as written, an H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3, or TN worker, plus spouses and children, would fail to maintain status the day after employment or qualifying activity stops. Immediate departure becomes the expected next step unless another form of lawful stay already covers the household. The grace period remains in force today. Nothing changes for your status until a final rule with an implementation date appears.
What the current grace period covers
DHS created the up-to-60-day window in the 2016 AC21 final rule, Retention of EB-1, EB-2, EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, published at 81 FR 82398 on 18 November 2016 and effective 17 January 2017. Under 8 CFR 214.1(l)(2), covered workers receive the shorter of 60 days or the time left on the authorized validity period. Work is not authorized during the window. Status is still treated as maintained for immigration purposes.
The breathing room supports a new Form I-129 change of employer, a Form I-539 change of status, a Form I-485 where eligible, a compelling circumstances Employment Authorization Document in narrow cases, or orderly departure. The grace period applies after voluntary resignation and after involuntary layoff. USCIS retains discretion to shorten or refuse the period when a later benefit request is adjudicated.
Who faces the change
The proposed text would remove 8 CFR 214.1(l)(2), redesignate current paragraph (l)(3) as the new (l)(2), and revise 8 CFR 204.5(p)(1)(i) to drop the cross reference to the 60-day bridge. Categories named in the proposal include:
- H-1B specialty occupation workers
- H-1B1 workers from Chile and Singapore
- L-1 intracompany transferees
- O-1 workers of extraordinary ability
- E-1 treaty traders, E-2 treaty investors, and E-3 Australian specialty workers
- TN professionals under the United States-Mexico-Canada Agreement
- Dependents whose status tracks the principal
DHS estimates an annual average of about 65,752 primary beneficiaries who faced employment cessation or employer change across a recent five-year window, with roughly 328,758 primaries over five years. About 99 percent of the primary group sat in H-1B status. Dependent volume sits near 208,187 per year on a five-year average, or about 1,040,935 across fiscal years 2021 through 2025. Agency proxy data comes mainly from I-129 withdrawals and undercounts classifications without withdrawal notice duties.
Why the 10-day period does not rescue mid-petition layoffs
A separate 10-day period at 8 CFR 214.1(l)(1) applies only after a validity period ends. Mid-petition terminations sit outside the reach of the 10-day rule. A layoff two years into a three-year H-1B approval leaves no cushion once 214.1(l)(2) disappears. Compelling circumstances EAD filings also become harder because an initial request requires qualifying status on the filing date. DHS data shows only 49 such filings in the relevant population across five fiscal years.
Risks DHS itself names
Failure to maintain status raises deportability exposure under INA 237(a)(1)(C)(i), potential unlawful presence and three-year or ten-year bars under INA 212(a)(9)(B), adjustment limits under INA 245(c)(2), and negative weight in later discretionary decisions. DHS also notes Notices to Appear grow more likely in categories where employers must report employment end quickly, including H-1B and O-1. H-1B petitioners keep return-transportation cost duties for beneficiaries dismissed before the end of the authorized admission period under existing rules.
H-1B portability under INA 214(n) remains statutory and is not rewritten in the proposal. The preamble leaves open how officers would treat a terminated worker whose Form I-94 has not expired for portability, extension of stay, or change of status. Track later guidance with care if your household sits in a layoff window.
What to do while the comment window is open
File comments through the Federal eRulemaking Portal at regulations.gov under DHS Docket No. USCIS-2026-0364. USCIS rejects mail, email, hand delivery, courier, and digital media submissions for this docket. Every comment posts publicly without change, including personal details inside the text. Useful comments cite a specific portion of the proposal, state a concrete recommendation, and attach data or authority.
DHS invites comments on reliance interests. Employers should describe mid-validity terminations and rehires in a normal year, consular wait times at relevant posts, project delays when a hire must leave and reenter, and costs of overseas processing. Workers and family members should describe mortgages, leases, school years, a spouse’s employment, pending permanent residence filings, and children near age 21. Alternatives DHS already rejected include partial elimination by category, a shortened grace period, and stricter evidence rules. Comments in favor of one of those options keep the record open for a narrower final text.
Practical steps for your household today
- Confirm your current classification, Form I-94 end date, and petition validity end date in writing.
- Ask your employer or counsel how layoff notice, LCA withdrawal, and return-transportation duties work for your petition.
- Map backup options while the grace period still exists: new I-129 portability, I-539 change of status, adjustment where eligible, or departure planning.
- Save copies of offer letters, pay stubs, school records, and lease or mortgage papers if you plan to comment on reliance.
- Watch for a final rule. The proposal alone does not end the 60-day window.
Reuters reported the proposal on 10 September 2026 and framed the change as part of a wider effort to tighten legal immigration pathways after January 2025. Fragomen and Reddy Neumann Brown PC published practitioner alerts the same week with matching docket details and category lists. Cross-check every number against the public-inspection PDF at public-inspection.federalregister.gov/2026-18631.pdf and the published Federal Register notice once live.
Your next move depends on role. Sponsors should stress-test offboarding timelines against an immediate-departure model. Workers should treat the current grace period as temporary and build a documented backup plan before any final effective date arrives.
Feedback
Was this article helpful?
Your answer helps us improve guides and editorial priorities.
