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.
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On October 23, 2023, USCIS published a proposed rule to modernize the H-1B program. The proposed rule primarily aims to address abuse of the H-1B cap registration system and to streamline requirements for the H-1B program. The proposed rule would revise the definition of an H-1B specialty occupation, clarify the definition of employer-employee relationship, extend the duration of F-1 OPT cap gap work authorization, and take various measures to enhance the integrity of the H-1B cap registration system, among other things. The proposed provisions will not take effect until finalized and the agency clarified that the proposed rule, especially the amendments to the H-1B registration process, may be finalized in stages and may or may not be implemented in time for the upcoming FY2025 H-1B registration window.
USCIS will accept public comments submitted online on or before December 22, 2023. Following the public comment period, the agency will review all comments and ultimately publish a final rule formally amending the H-1B regulations.
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