What’s Happening?
The Department of Homeland Security (“DHS”) has released a proposed rule that would eliminate the discretionary grace period of up to 60 days currently available to certain employment-based nonimmigrant workers following the end of their employment. As we previously reported in August, DHS had begun moving forward with this regulatory proposal, although the proposed regulatory text had not yet been released.
The proposed rule, titled “Eliminating the Discretionary 60-day Grace Period,” is scheduled for publication in the Federal Register on September 11, 2026 and would apply to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, as well as their qualifying dependents.
Importantly, there is no change to the 60-day grace period at this time. The current rule remains in effect unless and until DHS completes the rulemaking process and issues a final rule with an effective date.
What Is the Current 60-Day Grace Period?
Under current regulations, covered nonimmigrant workers may receive a discretionary grace period once during each authorized validity period when their qualifying employment ends. The grace period is limited to the shorter of 60 consecutive days or the remaining validity of the individual’s authorized stay and may apply following either voluntary or involuntary termination of employment.
During this period, eligible foreign nationals are not considered to have failed to maintain nonimmigrant status solely because their employment ended. This can provide time to pursue new employer sponsorship, seek a change to another immigration status, or make arrangements to depart the United States.
What is DHS Proposing?
DHS proposes to eliminate the 60-day grace period entirely by removing 8 C.F.R. § 214.1(l)(2). DHS states that the change would more directly tie an individual’s nonimmigrant status to the qualifying employment or activity underlying that status and reduce the administrative burden associated with administering the grace period.
If finalized as proposed, affected workers and their dependents would no longer have the protection of the 60-day grace period following the cessation of qualifying employment. DHS states that affected individuals would generally be required to depart the United States immediately unless otherwise authorized to lawfully remain.
DHS also acknowledges that, if the proposal is finalized, some affected foreign nationals who remain in the United States following the cessation of employment could become subject to the issuance of a Notice to Appear (“NTA”), which initiates removal proceedings.
What Does this Mean for Employers and Foreign Nationals?
Again, the proposal does not have any immediate impact on employers or foreign nationals, and the existing 60-day grace period remains available under the current regulations.
If finalized, however, the proposal could significantly reduce the time available to address immigration status following a resignation, layoff, or other termination of employment. Employers and foreign nationals may therefore need to engage in immigration planning earlier when an employment change is anticipated, particularly where the foreign national intends to remain and work in the United States.
What Happens Next?
DHS will accept public comments for 60 days following publication, through November 10, 2026. Comments must be submitted through the Federal eRulemaking Portal under DHS Docket No. USCIS-2026-0364.
Notably, DHS has specifically invited comments regarding the potential impact of the proposed rule, including any reliance interests implicated by the proposed change. These may include business arrangements made by employers and career, financial, and personal decisions made by foreign national workers and their families in reliance on the existing grace-period framework.
Following the comment period, DHS must consider the public feedback received before it may issue a final rule. The proposed rule will not take effect upon publication, and any final rule would need to specify an implementation date.
D&S will continue to monitor this development and provide further guidance as 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.