The Department of Homeland Security (“DHS”) is advancing a proposed regulation that would eliminate the discretionary 60-day grace period currently available to certain employment-based nonimmigrant workers following the end of their employment.
On August 6, 2026, DHS submitted a proposed rule titled “Eliminating the Discretionary 60-day Grace Period” to the White House Office of Information and Regulatory Affairs (“OIRA”) for regulatory review. The proposal could have significant consequences for foreign national employees who are laid off, resign, or otherwise end employment before their authorized period of stay expires, as well as for employers seeking to hire foreign nationals following the end of employment with another company.
Importantly, nothing has changed yet. The existing 60-day grace period remains available under current regulations.
Once the proposal completes federal review, it is expected to be published in the Federal Register for a public comment period, typically lasting 30 to 60 days. The proposed changes would not take effect unless and until DHS issues a final rule, a process that typically takes several months.
What Is the Current 60-Day Grace Period?
Under current DHS regulations, individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, and their dependents, may receive a discretionary grace period after the principal foreign national’s employment ends.
The discretionary grace period lasts for up to 60 consecutive days or until the end of the individual’s authorized period of stay, whichever is shorter, and is generally available once during each authorized validity period. It can apply whether employment ends voluntarily or involuntarily.
The grace period does not provide work authorization. Rather, it provides a limited period during which an eligible foreign national may remain in the United States while pursuing an appropriate immigration option, such as obtaining qualifying sponsorship from a new employer, applying to change to another immigration status, or preparing to depart the United States.
For example, an H-1B employee who unexpectedly loses employment may currently have up to 60 days to identify a new employer and have that employer prepare and file a qualifying H-1B petition.
What Is DHS Proposing?
The full text of the proposed rule has not yet been published, so important details remain unknown.
The federal regulatory filing identifies the proposal as “Eliminating the Discretionary 60-day Grace Period.” Based on that filing, DHS is seeking to eliminate the regulatory grace period currently available following cessation of qualifying employment.
If DHS ultimately eliminates the grace period without another protective mechanism, affected workers and their dependents could face immediate status consequences following the end of employment and may have significantly less ability to remain in the United States while pursuing a new employer or another immigration option.
The impact could also extend to dependent family members whose immigration status is tied to the principal foreign national.
Because DHS has not yet released the proposed regulatory text, however, it is too early to know whether the proposal would eliminate the full 60-day period in all circumstances or whether DHS may propose exceptions, transition provisions, delayed implementation, or other protections. Those details should become clearer once the proposed rule is published.
Would This Eliminate H-1B Portability?
No. Based on the information currently available, the proposal concerns the 60-day grace period, not the separate H-1B portability provisions that permit qualifying H-1B workers to change employers.
The practical issue would instead be timing.
Under the current framework, an H-1B worker whose employment unexpectedly ends may have time during the grace period to secure a new position and have the new employer prepare and file an H-1B petition. Without that period, there could be considerably less flexibility between the end of one H-1B job and the filing of the next employer’s petition.
This is not limited to layoffs. The current grace-period framework may also apply following a voluntary resignation. If the grace period is ultimately eliminated, foreign nationals contemplating a job change may need to coordinate the timing of their resignation and their new employer’s immigration filing much more carefully.
Could Elimination of the Grace Period Increase Enforcement Risk?
Potentially. Separate from this proposal, USCIS has taken a broader enforcement posture concerning individuals it determines are not lawfully present or are no longer maintaining status. There have also been reports of USCIS issuing Notices to Appear (“NTAs”) in certain cases involving H-1B workers during the existing discretionary 60-day grace period.
The proposed rule itself has not yet been published, and DHS has not announced how elimination of the grace period would interact with USCIS’s current NTA policy. It would therefore be premature to say that termination of employment would automatically result in an NTA or removal proceedings.
However, if the regulatory protection is eliminated, foreign nationals whose employment ends could face greater status and enforcement risk if they do not have another lawful basis to remain in the United States.
What Could This Mean for Employers?
If finalized as currently described, eliminating the grace period could make employment transitions involving foreign national workers significantly more time-sensitive.
Employers seeking to hire an H-1B or other affected nonimmigrant worker after the individual has left another employer may have substantially less time to complete the immigration process. This could place greater importance on identifying immigration sponsorship needs before a candidate’s prior employment ends and beginning required filings promptly.
For employers implementing layoffs or other workforce reductions, the change could also affect foreign national employees differently from their U.S. worker counterparts. Immigration consequences may extend to an employee’s spouse and children, depending on their dependent status.
Employers should therefore continue coordinating with immigration counsel when an employment termination involves a sponsored foreign national, particularly before communicating termination dates where there may be flexibility regarding timing.
What Should Foreign National Employees Do Now?
No immediate action is required. At this point, DHS has submitted only a proposal to end the 60-day grace period but the existing discretionary 60-day grace period remains in effect.
Foreign nationals should not assume that they must immediately leave the United States if their employment ends today. Current rules continue to govern unless and until DHS completes the rulemaking process and a final rule takes effect.
Nevertheless, the proposal underscores the importance of addressing immigration consequences promptly when employment may end.
Foreign nationals considering a voluntary job change should coordinate immigration timing with their prospective employer and counsel before resigning where possible. Individuals facing a layoff or other unexpected termination should contact immigration counsel promptly to evaluate available options, including new employer sponsorship, a potential change of status, or other case-specific alternatives.
What Happens Next?
The proposal is currently undergoing OIRA review. Once that review is complete, DHS is expected to publish the proposed rule in the Federal Register, at which point the public will be able to review the actual regulatory language and submit comments.
The proposal will not take effect merely because it has been submitted for regulatory review or published as a proposed rule. DHS would need to complete the applicable rulemaking process and issue a final rule before the existing regulation changes.
Publication of the proposed rule will be particularly important because it should answer several questions that cannot yet be resolved, including the precise scope of the change, whether any exceptions or transition provisions will apply, how DHS will address pending or recently terminated employment relationships, and how the new rule would interact with existing USCIS enforcement policies.
D&S will continue monitoring the proposal through the regulatory process and will provide further updates when DHS publishes the proposed rule.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.