What’s Happening?
The Department of Homeland Security (“DHS”) is moving forward with a proposed regulation, titled “Eliminating the Discretionary 60-day Grace Period”which would eliminate the discretionary 60-day grace period currently available to certain employment-based nonimmigrant workers following the end of their employment.
On August 27, 2026, the proposed rule cleared an initial administrative hurdle (review by the White House Office of Information and Regulatory Affairs (“OIRA”)), a prerequisite before publication in the Federal Register.
Importantly, there is no change to the 60-day grace period at this time. DHS must first publish the proposed rule in the Federal Register, after which the public will have an opportunity to comment. DHS would then need to consider those comments and issue a final rule before any regulatory change could take effect. Since the proposed rule has not yet been published, its exact provisions and any transition rules are not yet known.
What Is the Current 60-Day Grace Period?
Under current regulations, certain nonimmigrant workers may receive a discretionary grace period of up to 60 consecutive days when their employment ends before the expiration of their authorized period of stay. The grace period is limited to the shorter of 60 days or the remaining validity of the individual’s authorized stay.
The provision currently applies to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, as well as their qualifying dependents. The grace period can apply following either voluntary or involuntary termination of employment. Note that the grace periods covering F and J status are governed by separate regulations and are not impacted by this regulatory development.
For many foreign national employees, this period provides critical time following the end of employment to pursue a new employer-sponsored petition, seek a change to another immigration status, or make arrangements to depart the United States without accruing unlawful presence or otherwise violating the terms of their nonimmigrant status due to the cessation of their employment.
What Could Change?
If DHS ultimately eliminates the grace period, the immigration consequences of a termination or resignation could become significantly more immediate. Affected foreign nationals may have substantially less time to secure new sponsorship, pursue another immigration option, or depart the United States following the end of employment.
However, the full impact cannot be assessed until DHS publishes the actual proposed rule. Among other issues, the forthcoming proposal should clarify the precise classifications affected, whether DHS proposes any alternative protections or exceptions, and how the change would apply to individuals whose employment ends around the effective date of a future final rule.
What Happens Next?
The proposed rule is expected to be published in the Federal Register, which will begin a public comment period, typically lasting 30 or 60 days. DHS must then review the comments received before issuing any final rule. As a result, the proposed change will not take effect immediately and, if finalized, implementation will only after the formal rulemaking process is completed. Employers and other stakeholders will have an opportunity during the comment period to submit feedback regarding the potential operational and business impacts of the proposal.
What Should Employers and Foreign Nationals Do Now?
No immediate action is required solely as a result of OIRA’s completion of review, and foreign nationals should not assume that the existing 60-day grace period has been eliminated.
Nevertheless, employers should be aware that, if finalized, the proposal could materially affect immigration planning surrounding terminations, reductions in force, voluntary departures, and employee transitions between employers. Foreign nationals contemplating a change in employment should likewise seek immigration advice promptly rather than relying on the availability of the full 60-day period.
D&S will continue to closely monitor the proposal through the regulatory process and will provide further guidance regarding its scope, timing, and practical impact on employers and foreign national employees as DHS publishes the proposed rule and additional information becomes available.
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.