NewsFlash! DHS Proposes Eliminating 60-Day Grace Period for Certain Nonimmigrant Workers

The U.S. Department of Homeland Security (DHS) is scheduled to publish a notice of proposed rulemaking on September 11, 2026, that would eliminate the discretionary grace period of up to 60 days currently available to certain nonimmigrant workers following the end of employment. The proposed rule, Eliminating the Discretionary 60-day Grace Period, would affect workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status, as well as their dependent family members.

What Is Being Proposed?

Under the current regulation, an eligible nonimmigrant worker whose qualifying employment ends before the expiration of the worker’s authorized validity period generally may receive a discretionary grace period of up to 60 consecutive days, or until the last day of the authorized validity period, whichever is shorter. During that period, the worker generally will not be treated as having violated nonimmigrant status merely because the employment ended. This flexibility allows for time to secure new qualifying employment, find a new employer, file a petition, request a change of status, or pursue another viable immigration option.

DHS proposes removing this grace-period provision from 8 C.F.R. §214.1(l). If the proposal is finalized as written, an affected worker generally would be considered to be failing to maintain status after the qualifying employment or activity ends, unless the individual is otherwise authorized to remain in the United States. The worker and dependent family members would need to depart promptly or rely upon another timely and legally viable basis to remain.

Why Is DHS Proposing the Change?

DHS states that eliminating the grace period would more directly connect a worker’s nonimmigrant status to the employment or activity underlying that status. The agency also asserts that the change would promote program integrity and reduce the administrative burden involved in determining whether the discretionary grace period applies when USCIS adjudicates later petitions and applications.

The proposal acknowledges that affected workers may face lost income, travel expenses, and other costs if they must leave the United States to search for employment and later seek readmission. DHS estimates that approximately 3,795 workers annually have a new Form I-129 filed on their behalf by a new petitioner during the current grace period, with H1B workers accounting for the overwhelming majority of that estimate. The proposal also recognizes potential consequences for work-authorized dependent spouses and their employers.

The Current Grace Period Remains in Effect

This is only a proposed rule. It does not eliminate or otherwise change the existing 60-day discretionary grace-period regulation at this time. However, we at the Murthy Law Firm are observing that the USCIS has recently been issuing RFEs and NOIDs questioning the 60-day grace period and denying changes of status, in their discretion, a fact that did not occur routinely in the past.

DHS must review public comments and publish a final rule before the proposed change could take effect. Any final rule would specify its effective date and may differ from the proposal.

Comments and Practical Considerations

Written comments are due on or before November 10, 2026, and may be submitted through Regulations.gov under DHS Docket No. USCIS-2026-0364.

Employers and affected foreign nationals should monitor this rulemaking closely. If the proposal is finalized, advance planning following a resignation, layoff, or termination would become substantially more important. Foreign nationals facing an end of employment should seek individualized legal advice promptly regarding possible employer-sponsored filings, change-of-status options, adjustment of status, compelling-circumstances employment authorization, or departure and later readmission, as applicable.

Conclusion

The proposed elimination of the 60-day grace period would represent a significant change for many employment-based nonimmigrant workers and their families. The Murthy Law Firm will continue to monitor the rulemaking and provide updates as more information becomes available.

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