On September 11, 2026, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) titled “Eliminating the Discretionary 60-Day Grace Period”. The proposal appears in Federal Register Volume 91, No. 175, at 91 FR 57807, under DHS Docket No. USCIS-2026-0364 and RIN 1615-AD22. Secretary Markwayne Mullin signed the proposal.
If finalized as written, the rule would eliminate the regulatory grace period that currently gives certain employment-based nonimmigrant workers up to 60 days after their employment ends to seek another qualifying position, file an immigration application, or prepare for departure.
The proposal is not currently effective. The 60-day grace period remains available under existing regulations unless and until DHS publishes a final rule that changes the law.
What DHS proposes to change
DHS proposes to remove 8 CFR 214.1(l)(2). That provision currently allows nonimmigrants in the following classifications, and their qualifying dependents, up to 60 days after the cessation of employment or qualifying activity without being considered out of status solely because the employment ended:
- E-1 treaty traders;
- E-2 treaty investors and qualifying employees;
- E-3 Australian specialty occupation workers;
- H-1B specialty occupation workers;
- H-1B1 workers from Chile and Singapore;
- L-1 intracompany transferees;
- O-1 individuals with extraordinary ability or achievement; and
- TN professionals from Canada and Mexico.
The existing grace period is discretionary. It may last up to 60 days or until the end of the authorized validity period, whichever occurs first. DHS may shorten or eliminate it based on the circumstances of the case.
The proposed rule would remove that regulatory authority. A covered worker would generally be considered to have failed to maintain status on the day after employment or qualifying activity ends. The worker would be expected to depart the United States immediately unless another legal basis authorizes continued stay.
The status of dependent spouses and children is tied to the principal worker’s status. If the principal worker loses status under the proposed rule, dependents would lose their corresponding status at the same time. DHS estimates that approximately 208,187 dependents per year are within the covered population, representing 1,040,935 dependents during fiscal years 2021 through 2025.
The 10-day grace period would not protect a mid-validity termination
The proposal does not eliminate every grace period available under the regulations.
Under 8 CFR 214.1(l)(1), certain workers may receive up to 10 days before the authorized validity period begins and after that validity period ends. That provision applies after the validity period expires. It does not apply when an employee is terminated or resigns during the approved validity period.
For example, an L-1 visa worker whose approval remains valid for another year would not be able to rely on the 10-day post-validity-period provision after losing employment under the proposed rule. The worker would need to identify another lawful basis to remain or prepare for departure.
Why DHS is proposing the change
DHS created the 60-day grace period through the 2016 AC21 final rule, 81 FR 82398, which became effective on January 17, 2017. The rule was intended to promote job portability and provide limited flexibility to high-skilled workers and U.S. employers.
The proposal states that DHS now views the grace period as inconsistent with the statutory structure of the covered classifications. DHS emphasizes that E, H-1B, L-1, O-1, and TN status is tied to specific employment or qualifying activity. Under DHS’s reasoning, a worker who is no longer performing that activity is no longer complying with the conditions of admission.
DHS also cites administrative burden. From fiscal year 2018 through May 2026, USCIS reviewed more than 1.9 million petitions and applications that potentially required an assessment of whether the grace period applied. Those filings included Forms I-129, I-539, I-485, and I-765.
The agency states that adjudicators often must determine:
- The exact date employment ended;
- Whether the grace period applies;
- Whether the worker remained eligible during the period;
- Whether the grace period should be shortened or eliminated; and
- Whether the worker timely filed a subsequent petition or application.
DHS argues that removing the grace period would simplify adjudications and restore a direct connection between employment and lawful nonimmigrant status.
DHS’s data on workers who may be affected
DHS estimates that approximately 65,752 primary beneficiaries per year experienced cessation of employment or changed employers during the five-year period analyzed. Approximately 99% of these beneficiaries were in H-1B status.
Within the covered population from fiscal years 2021 through 2025:
- 5.77% had a new Form I-129 filed by a new employer within 60 days;
- 1.70% filed Form I-539 to request an extension or change of status;
- 0.59% filed Form I-485 to seek adjustment of status; and
- Less than 0.1% filed Form I-765 for a compelling circumstances Employment Authorization Document (EAD).
These percentages do not represent every worker who used the grace period. DHS acknowledged that its data relies on certain petition withdrawal records and may not capture every employment change or termination.
The proposal also identifies potential costs, including international travel, lost income, disrupted housing arrangements, delayed hiring, and return transportation expenses. An H-1B or O-1 employer may have to pay reasonable return transportation costs when it dismisses a worker before the end of the authorized admission period.
H-1B portability remains statutory, but important questions remain
The proposed rule does not amend H-1B portability under INA § 214(n). Eligible H-1B workers may continue to qualify for employment with a new employer upon the filing of a nonfrivolous H-1B petition, subject to the statutory requirements.
However, the proposal creates uncertainty regarding how portability would operate after a termination.
Under current practice, the 60-day grace period can provide time for a worker to obtain a new offer and for the new employer to file a qualifying H-1B petition. If the grace period is removed, a terminated worker may be considered to have failed to maintain status the day after employment ends, even if the worker’s Form I-94 has not yet expired.
The proposal does not expressly resolve whether an unexpired I-94 would preserve portability after a worker has failed to maintain status. Employers and workers should not assume that an unexpired I-94 alone will protect continued employment or eligibility for an in-country change or extension of status.
This issue requires careful review of the final rule, USCIS implementation guidance, the facts of the termination, the timing of the new petition, and the worker’s eligibility under INA § 214(n).
Immigration consequences of failing to maintain status
Failure to maintain nonimmigrant status can create consequences beyond the immediate loss of employment authorization. Depending on the facts, consequences may include:
- Deportability under INA § 237(a)(1)(C)(i);
- Accrual of unlawful presence;
- Potential three-year or ten-year inadmissibility bars under INA § 212(a)(9)(B);
- Adjustment-of-status limitations under INA § 245(c)(2); and
- Negative discretionary factors in future immigration benefit requests.
The legal consequences depend on the specific facts, including the date employment ended, the date a petition or application was filed, the worker’s I-94 expiration date, and whether USCIS or an immigration judge makes a formal determination.
A worker should not continue employment for a new employer unless the worker has applicable authorization. The current grace period generally provides time to pursue immigration options, but it does not independently authorize employment.
Proposed change to compelling circumstances EAD eligibility
DHS also proposes to revise 8 CFR 204.5(p)(1)(i). The revision would narrow the period during which certain workers may file an initial Form I-765 application for compelling circumstances employment authorization.
The proposed text would identify eligible individuals in E-3, H-1B, H-1B1, O-1, or L-1 status, including specified periods before or after the validity period. The revision would remove the existing regulatory cross-reference to the 60-day grace period.
A compelling circumstances EAD is not a general substitute for the grace period. Eligibility is limited, and the worker must satisfy the applicable regulatory requirements. Workers considering this option should obtain an individualized assessment before relying on it.
DHS rejected three alternatives
DHS considered and rejected three alternatives:
- Eliminating the grace period only for certain classifications;
- Shortening the grace period instead of eliminating it; and
- Requiring stricter evidence before USCIS would consider applying the grace period.
DHS concluded that partial elimination or a shorter period would not sufficiently address its stated statutory and administrative concerns. DHS also determined that stricter evidence would continue to require adjudicators to review employment cessation dates and evaluate eligibility.
What employers and HR teams should do now
The proposal does not require immediate changes to current immigration processes. Employers should nevertheless prepare for a potential change.
HR and mobility teams should:
- Review all H-1B, L-1, O-1, E, TN, and H-1B1 employees and their dependents;
- Maintain accurate records of employment end dates;
- Coordinate termination decisions with immigration counsel;
- Avoid assuming that an unexpired I-94 authorizes continued employment;
- Develop procedures for rapid assessment of new petitions and status options;
- Review return transportation obligations for dismissed H-1B and O-1 workers;
- Coordinate immigration status analysis with I-9 compliance and reverification procedures; and
- Train managers not to provide immigration advice or authorize work outside the approved classification.
A workforce compliance and I-9 review should be coordinated with the employer’s broader business immigration program. Form I-9 compliance does not replace the need to evaluate the employee’s underlying immigration status and employment authorization.
Public comments are due November 10, 2026
DHS will accept public comments through November 10, 2026, before midnight Eastern Time. Comments must be submitted electronically through Regulations.gov under DHS Docket No. USCIS-2026-0364.
USCIS is not accepting comments submitted by:
- Mail;
- Email;
- Hand delivery;
- Courier; or
- Digital media, including CDs, DVDs, or USB drives.
Comments should identify the specific provision addressed and provide supporting facts, data, legal authority, or operational information. All submissions may become publicly available.
Conclusion: the grace period remains in effect today
The 60-day grace period remains available under current law. Nothing changes until DHS publishes a final rule and establishes an effective date.
Employers and foreign workers should, however, plan for a system in which employment termination may require immediate action. A termination during an approved validity period could create a status issue the next day, affect dependents, limit in-country options, and increase the importance of timely petition preparation.
Blasingame Law LLC provides personalized guidance for employers, HR departments, and foreign workers addressing H-1B visa 2026 planning, L-1 visa and intracompany transfer visa matters, work visa compliance, termination procedures, I-9 compliance, and workforce compliance. With more than 30 years of experience in corporate and private practice, the firm helps clients evaluate time-sensitive immigration risks and develop legally compliant strategies.
Contact Blasingame Law LLC or schedule a consultation to discuss how this proposed rule may affect your workforce or immigration case.
