DHS Releases Proposed Rule to Eliminate Discretionary 60-Day Grace Period for Certain Nonimmigrant Workers

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.

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DOL Plans Major Modernization of PERM Labor Certification Program

What’s Happening

The U.S. Department of Labor (“DOL”) has announced plans to significantly modernize the permanent labor certification (“PERM”) program, potentially setting the stage for the most substantial changes to the employer-sponsored green card process in more than two decades.

As part of its Spring 2026 Unified Agenda, DOL added a proposed rule titled “Modernizing the Labor Market Test and Improving Protections for U.S. Workers in the PERM Immigrant Visa Program.” The rulemaking, identified as RIN 1205-AC29, is currently at the proposed rule stage. DOL initially targeted July 2026 for publication of a Notice of Proposed Rulemaking (“NPRM”), but no proposed regulatory text has yet been published.

Importantly, there are no changes to the PERM process at this time. The Unified Agenda reflects DOL’s intention to pursue rulemaking, but it does not itself create new requirements. Employers should continue to initiate and process PERM cases under the existing regulations.

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"I-140 EAD Rule" Submitted to OMB For Final Review

This week the Department of Homeland Security (DHS) submitted The Proposed Rule for Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Nonimmigrant Workers, (frequently referred to as the "I-140-EAD Rule") to the Office of Management and Budget (OMB) for final review prior to publication.

The Proposed Rule was published at the end of 2015 and the public comment period lasted for the first 2 months of 2016. Since that time DHS been reviewing the public comments that were submitted in response to the proposed rule.  The OMB review process is expected to take 30-60 days and, upon completion, a final rule will be published and would be expected to take effect after 60 days from publication. At present DHS has not indicated whether any significant changes have been made to the rule in response to public comments to the Proposed Rule.

D&S will continue to monitor developments and provide updates as they become available.