DHS has proposed eliminating the discretionary grace period that currently gives certain nonimmigrant workers time to address a job loss without being considered out of status solely because their employment ended. The proposed change could affect employers, foreign workers, and their families. It is not in effect. The 60-day grace period remains available under current regulations.
The proposal, “Eliminating the Discretionary 60-Day Grace Period,” was published on September 11, 2026, at 91 FR 57807. DHS Docket No. USCIS-2026-0364 accepts public comments through November 10, 2026.
What DHS proposes to change
Under current 8 C.F.R. § 214.1(l)(2), eligible E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers, and their dependents, may remain in the United States for up to 60 days after the qualifying employment or activity ends, or until the end of their authorized stay shown on the I-94, whichever comes first. The period is discretionary and does not, by itself, authorize the worker to continue working.
The grace period was established by a 2016 final rule that took effect on January 17, 2017. During the period, eligible workers may pursue a new qualifying job, seek a change of status, or prepare to depart without being considered out of status solely because employment ended.
DHS proposes to remove the regulation that provides this flexibility. If the proposal is finalized as written, affected workers would generally be expected to depart when the employment or activity underlying their status ends, unless they have another authorization to remain. DHS also acknowledges that some workers could receive Notices to Appear, which initiate removal proceedings.
DHS cites reduced administrative burden and closer alignment between immigration status and the qualifying employment or activity as reasons for the proposal.
The proposal is not yet law
The current grace period remains available today. DHS must close the comment period, consider submitted comments, and publish a final rule with an implementation date before the proposed change can take effect. The proposal may be revised, delayed, or not finalized.
Employers should not treat it as an immediate change to work authorization or conduct automatic workforce separations based on the proposal alone. They should, however, prepare for the possibility of a shorter response window if a final rule is issued.
Written comments are due on or before November 10, 2026. Comments must be submitted through the Federal eRulemaking Portal, using DHS Docket No. USCIS-2026-0364. Comments become public, so organizations and individuals should avoid including unnecessary personal or confidential information.
Why employers should review termination practices now
The end of employment and the end of immigration status are related, but they are not always the same date. Under the current rule, the grace period is capped by the worker’s authorized stay. If the I-94 expires sooner than 60 days after employment ends, the grace period cannot extend past that date.
Employers should document the actual last day of employment and avoid assuming that severance, continued payroll, or a payment in lieu of notice automatically changes the date employment ends. The facts and applicable immigration rules matter. An incorrect date can affect a later petition or application and may create avoidable status questions.
Before announcing a layoff or separation involving a sponsored worker, employers should coordinate with immigration counsel. Review the timing of the separation, potential severance arrangements, the worker’s I-94, and any pending petitions or applications. For H-1B workers, counsel should also assess petition-withdrawal notice requirements, the required steps for a bona fide termination, and any applicable return-transportation obligation following employer dismissal.
Employers should also prepare a written termination and offboarding protocol that addresses:
- Identifying affected employees and their dependent family members.
- Recording the last date of employment and preserving supporting records.
- Tracking the I-94 expiration date for each sponsored worker and dependent.
- Explaining relevant deadlines and available next steps to affected workers and dependents.
- Reviewing H-1B Labor Condition Application (LCA) and Public Access File (PAF) obligations, including applicable recordkeeping.
- Coordinating with counsel before notifying employees or withdrawing a petition.
This should be part of broader workforce compliance planning for employers of all sizes, not only large companies.
Options that may remain available
If the proposed rule is finalized, a worker may still have immigration options. Eligibility and timing will depend on the specific status, filing history, and facts. A filing should not be assumed to extend lawful status or permit employment unless the applicable rules provide that result.
Possible paths include:
- A timely change-of-status or extension filing. Filing while the worker remains eligible may be important. A pending application does not necessarily provide work authorization.
- A new employer’s H-1B petition. Under existing H-1B portability rules, an eligible worker may be authorized to begin with a new employer after a qualifying, nonfrivolous H-1B petition is properly filed. The worker must meet statutory requirements; an offer alone is not sufficient.
- Cap-exempt H-1B employment. A qualifying position may avoid the annual cap, but the employer must still file the required petition and meet applicable requirements.
- Adjustment of status. A worker with an available priority date may be able to file Form I-485 if otherwise eligible. A pending adjustment application does not automatically authorize employment.
- A change to F-1 or another nonimmigrant status. A worker may be able to seek a different status, subject to the applicable eligibility and filing rules. Work is not permitted unless separately authorized.
- Departure and consular processing. A worker may depart and pursue a new visa or admission after the required petition or application is approved. Approval does not guarantee admission.
The L-1 visa, an intracompany transfer visa, and the other classifications covered by the proposal do not all have the same job-change rules as H-1B. In particular, employers and workers should not assume that H-1B portability applies to L-1, O-1, TN, E, or H-1B1 cases.
Dependents and work authorization
A principal worker’s status can affect dependent family members. If a principal worker loses the basis for status, dependents in H-4, L-2, TD, or other derivative classifications may also lose their basis to remain. Their I-94 dates and immigration options must be reviewed individually.
This can affect work authorization. For example, L-2 spouses’ work authorization is connected to valid L-2 status, and some H-4 spouses work under an employment authorization document. If the dependent’s status or work authorization ends, continued employment may no longer be permitted. Employers should notify affected workers that their family members may need separate legal guidance; dependent employment authorization must not be presumed to continue independently.
I-9 and E-Verify considerations
The proposal does not currently change Form I-9 obligations. If a final rule changes when an employee is authorized to work, employers should assess whether action is required under I-9 rules and apply those rules consistently. Do not request particular documents based on citizenship or national origin, and do not conduct reverification solely because the proposed rule exists.
Employers should review their I-9 and E-Verify procedures for cases in which work authorization may end sooner than expected. Preserve accurate employment records, use the correct process when work authorization expires, and escalate status questions to counsel. Continuing to employ a person after the employer has actual knowledge that the person is not authorized to work can create compliance exposure.
A changing immigration environment
The proposal is part of a broader pattern of tighter nonimmigrant rules and enforcement developments in 2026. USCIS Policy Alert PA-2026-05 expands discretion to deny certain petitions without first issuing a Request for Evidence when required initial evidence is missing. DOL has also suspended PERM processing for certain large employers. Separately, litigation over the $100,000 H-1B payment continues after a federal court blocked implementation of the challenged payment policies; employers can review Blasingame Law LLC’s update.
These developments are distinct. Employers should evaluate each under its own rules and current legal status.
What foreign workers and families should do now
Before any final rule is issued:
- Verify the exact expiration date on each family member’s I-94.
- Keep copies of approval notices, petitions, I-94 records, and employment documents.
- Address a job loss promptly; do not assume a job search or severance extends status.
- Consult immigration counsel before traveling, filing a change-of-status application, or starting new employment.
Contact Blasingame Law LLC
Employers should review sponsored-worker records and establish a coordinated separation process before an urgent case arises. Blasingame Law LLC provides business immigration and workforce compliance guidance for employers of all sizes, backed by more than thirty years of experience in corporate and private immigration practice.
Contact an immigration lawyer at Blasingame Law LLC for case-specific guidance, or learn more about the firm’s business immigration solutions. A business immigration attorney can help assess a worker’s options, review termination timing, and evaluate I-9 compliance obligations.
This article provides general information and is not legal advice. Immigration outcomes depend on individual facts and current law.
