DHS Moves to Eliminate the 60-Day Grace Period for H-1B and Other Nonimmigrant Workers

The Department of Homeland Security is advancing a proposal that would remove one of the more practical protections in the employment-based immigration system: the 60-day grace period that gives certain nonimmigrant workers a window to respond when their employment ends. A proposed rule to eliminate the grace period was sent to the White House Office of Management and Budget for review in early August 2026. It has not yet been published, and until it is, its precise provisions will not be known and the existing 60-day grace period remains fully in effect. But the direction is clear, and for the foreign nationals who rely on that window, the potential consequences are significant.

What the Grace Period Does Now

The grace period was established by regulation in 2016 and took effect in early 2017. Under the current rule, workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications, along with their dependents, are not treated as having failed to maintain status simply because the principal worker's employment has ended. The period runs for the shorter of 60 days or the date the worker's I-94 expires, and it is available once during each authorized petition validity period. DHS has always retained discretion to shorten or refuse it, but has rarely exercised that discretion.

The purpose was to soften the immigration consequences of losing a job. Within that window, an affected worker can look for a new employer in the same category, pursue a change of status, or simply wind down their affairs and prepare to depart, without immediately falling out of status. Importantly, the protection applies whether the employment ends voluntarily or involuntarily, which means it covers layoffs, terminations, and restructurings alike.

What Would Change

If the grace period is eliminated, the practical effect would be immediate. A foreign national whose employment ceases before their authorized period of stay expires would generally no longer be maintaining status. That individual and their dependents would be required to depart the US without delay, and would be unable to change employers or change status from within the country, unless USCIS chose to exercise its discretion to forgive the lapse.

The distinction matters because the mechanics of continued employment take time. An H-1B worker who loses a position typically needs both a willing new employer and the appropriate immigration filing before they can lawfully work again. The 60-day window exists precisely to accommodate that sequence. Without it, a worker affected by a layoff would face the prospect of losing lawful status the moment the job ends, well before a new sponsor and petition could realistically be arranged.

A Pattern of The Recent Proposed Rules

This proposal does not stand in isolation. It follows a series of measures this year that share a common thread: shortening the timeframes and narrowing the flexibility available to foreign workers and students. Earlier rules moved to reduce the post-completion grace period for F-1 students from 60 days to 30, ended the open-ended "duration of status" framework for student visas, and introduced heightened scrutiny of change-of-status and adjustment filings. Taken together, these developments point toward a consistent tightening of the margins around temporary status, with more risk shifted onto the individuals and employers least able to absorb it.

For employers, the elimination of the grace period would complicate workforce transitions and raise the stakes around any layoff involving foreign national staff. For the workers themselves, it would remove a modest but meaningful buffer that has, until now, made the loss of a job something short of an immediate immigration emergency.

What Happens Next

The rule remains a proposal under review, not published text, so nothing changes at this stage. Once it clears OMB review, which could take several months or longer, it will be published in the Federal Register for a public comment period expected to run 30 to 60 days. The regulation would not take effect until it is finalized, a process that typically takes additional months. Employers and other stakeholders will have an opportunity to submit comments before USCIS issues any final rule, and input from the business community on the practical impact will be an important part of that record.

In the meantime, the sensible course for employers is not to change policies based on a proposal still under review, but to confirm that current procedures correctly administer the existing grace period, including how the 60-day limit is calculated against each worker's I-94 expiration date. Companies with significant foreign national populations should ensure their HR, legal, and immigration teams are aligned and monitoring the rulemaking as it develops.

Why This Reinforces the Case for Permanent Status

For foreign nationals watching this proposal, it underscores a broader reality about temporary work status: its stability depends on conditions outside the individual's control, and those conditions are being made more demanding. The grace period is a good example. It was never a path to anything permanent, only a cushion against the abruptness of a job loss, and now even that cushion is at risk of being removed.

This is part of what leads many professionals in these same classifications, particularly H-1B, L-1, O-1, and TN holders, to weigh a more durable alternative. EB-5 offers permanent residence through a qualifying investment rather than through continued employment, which means a job loss, a layoff, or a change in an employer's circumstances no longer carries direct immigration consequences. An EB-5 investor is not dependent on a grace period to bridge the gap between one sponsorship and the next, because their status does not run through an employer at all. For eligible applicants already in the US under a reserved EB-5 category with a visa number available, adjustment of status may be filed concurrently with the petition, carrying employment authorization and travel permission while the case is pending.

None of this makes EB-5 the right choice for everyone, and it is a substantial financial commitment that requires lawfully sourced and thoroughly documented funds. But as the protections surrounding temporary status continue to narrow, the appeal of a pathway that does not depend on them grows correspondingly stronger. For those already considering the move, this proposal is one more reason to evaluate the option sooner rather than later.

Final Thoughts

The proposed elimination of the 60-day grace period would remove a practical safeguard that has, since 2017, given nonimmigrant workers a realistic window to respond to the loss of a job. The rule is not yet published, its details remain unknown, and the current grace period continues to apply in full for now. But the proposal fits a wider pattern of compressing the timeframes available to foreign workers and students, and it is worth watching closely. Employers and affected individuals should monitor the rule-making as it progresses, prepare to participate in the comment period once the proposal is published, and consult qualified immigration counsel about how the potential change, and the broader tightening it reflects, bears on their own circumstances.

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