DHS Proposes Eliminating the 60-Day Grace Period for H-1B and Other Nonimmigrant Workers: What Employers and Foreign Professionals Need to Kno
September 11, 2026
The U.S. Department of Homeland Security (DHS) has proposed eliminating a significant protection currently available to certain employment-based nonimmigrant workers who lose or leave their jobs: the discretionary grace period of up to 60 days.
If finalized as proposed, the rule could substantially change the immigration consequences of an unexpected termination, layoff, resignation, or other cessation of qualifying employment for thousands of foreign professionals and their families.
The most important point, however, is also the easiest to lose amid the headlines:
The rule has been proposed, but it is not yet final. The existing 60-day grace-period regulation remains in effect at this time.
What Is the Current 60-Day Grace Period?
Under current regulations at 8 C.F.R. § 214.1(l)(2), individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications generally are not considered to have failed to maintain nonimmigrant status solely because their qualifying employment ends for up to 60 consecutive days—or until the end of their existing authorized validity period, whichever occurs first.
The protection is discretionary, and DHS retains authority under the existing regulation to shorten or eliminate the grace period in an individual case.
Nevertheless, in practice, the provision has provided an important transition period for many foreign professionals whose employment unexpectedly ends.
During that period, an eligible worker may potentially secure another qualifying employer, pursue an extension or change of status if eligible, or make arrangements to depart the United States.
The grace period does not, by itself, authorize the individual to continue working for the former employer or to work for another employer without separate employment authorization.
What Is DHS Proposing?
DHS is proposing to remove 8 C.F.R. § 214.1(l)(2) entirely.
If the proposal becomes a final rule in its present form, the special regulatory protection allowing up to 60 days following cessation of qualifying employment would disappear.
According to DHS, an affected nonimmigrant generally would be considered to have failed to maintain status beginning the day after the employment or qualifying activity ends, unless the individual has another independent basis to lawfully remain in the United States.
This would represent a significant change from the framework that has existed since 2017.
This Is Not Only an H-1B Proposal
Although much of the public discussion has focused on H-1B professionals, the proposed rule is considerably broader.
It would affect individuals in:
- E-1 treaty trader status;
- E-2 treaty investor status;
- E-3 Australian specialty occupation status;
- H-1B specialty occupation status;
- H-1B1 status for qualifying Chilean and Singaporean professionals;
- L-1 intracompany transferee status;
- O-1 extraordinary ability or achievement status; and
- TN status for qualifying Canadian and Mexican professionals.
Dependents whose status is tied to the principal nonimmigrant could also be affected.
This distinction matters. The proposal is not simply an H-1B policy change; it would alter an important status-maintenance rule across several of the United States' principal employment-based nonimmigrant classifications.
Would Losing a Job Mean Immediate Deportation?
Not exactly.
Some headlines may understandably create that impression, but the legal distinction is important.
If the rule is finalized as proposed, cessation of qualifying employment could cause an affected worker to fail to maintain the underlying nonimmigrant status beginning the following day, unless another lawful basis for remaining exists.
Failure to maintain nonimmigrant status can have serious immigration consequences, including removability. But becoming removable under the Immigration and Nationality Act is not the same thing as being physically deported the following day.
Removal ordinarily involves separate immigration enforcement and procedural mechanisms.
Likewise, failure to maintain status and accrual of “unlawful presence” are related but distinct legal concepts. The consequences of each depend on the individual's circumstances, immigration history, I-94, filings, and other factors.
For that reason, statements such as “an H-1B worker will automatically be deported the day after being laid off” oversimplify the proposal.
The practical concern is nevertheless substantial: workers could lose the regulatory transition period that currently gives them time to respond to an unexpected employment termination while remaining in status.
Could an H-1B Worker Still Change Employers?
Potentially, yes.
The proposal does not repeal the statutory H-1B portability framework.
Under applicable H-1B portability provisions, certain eligible H-1B workers may begin employment with a new H-1B employer once a properly filed, non-frivolous H-1B petition for new employment has been filed, rather than waiting for USCIS to approve that petition.
But eliminating the grace period would dramatically increase the importance of timing.
Under the current framework, an H-1B professional who is unexpectedly laid off may have a limited period in which to locate a new employer willing to sponsor an H-1B petition.
Without the grace period, the worker and prospective employer could face pressure to identify the immigration strategy and act before—or immediately in connection with—the termination of the existing employment.
The availability of portability or another immigration strategy remains highly fact-specific.
Why Does DHS Want to Eliminate the Grace Period?
DHS states that the proposed change would restore a more direct relationship between employment-based nonimmigrant status and the employment or activity upon which that status is based.
The agency's position is that these classifications generally exist because the individual is performing the particular employment or activity that supported admission or the grant of status. DHS therefore reasons that when the qualifying employment ceases, the regulatory grace period creates a temporary disconnect between the underlying basis for the classification and the individual's continued status.
DHS also states that eliminating the provision would reduce administrative burdens associated with determining whether to grant, shorten, or eliminate the discretionary grace period in individual adjudications.
These are the government's stated justifications for the proposal.
Why Was the 60-Day Grace Period Created in the First Place?
The current provision was adopted as part of a 2016 final rule that became effective in 2017.
At that time, DHS explained that providing a limited grace period could improve job portability, stability, and flexibility for highly skilled nonimmigrant workers whose employment unexpectedly ended.
The policy also benefited U.S. employers seeking to recruit foreign professionals who were already present in the country.
The current debate therefore reflects two different approaches to employment-based immigration policy.
One approach emphasizes the relationship between a specific qualifying job and the immigration status derived from that employment.
The other emphasizes workforce mobility and a reasonable transition period for foreign professionals who may unexpectedly lose employment through no fault of their own.
The proposed rule favors the former approach.
DHS Itself Recognizes Potential Economic Consequences
The proposed rule acknowledges that eliminating the grace period could impose costs on affected workers.
Those costs may include lost income, travel expenses, lease-termination costs, disruption associated with an accelerated departure, and additional time outside the United States while pursuing subsequent employment.
DHS's analysis is particularly revealing with respect to H-1B workers.
Based on the agency's data, DHS estimates that approximately 3,795 workers annually had a new nonimmigrant worker petition submitted by a new petitioner during the existing grace period in the relevant analysis, and approximately 99.2% of that population was in H-1B classification.
For FY2025, DHS reports that the median annual wage among the relevant H-1B population in its analysis was approximately $131,000.
DHS also recognizes potential effects on employers, including temporary productivity losses when a foreign professional must depart before a new employment arrangement can be completed.
Families Could Be Affected Too
The consequences would not necessarily stop with the principal worker.
The immigration status of spouses and children in dependent classifications generally derives from the principal nonimmigrant's status.
DHS expressly recognizes in its proposed rule that dependents could therefore be affected when the principal worker's qualifying employment terminates.
The impact could be particularly significant where a dependent spouse has independent employment authorization—for example, certain H-4 spouses or employment-authorized spouses in other qualifying dependent classifications.
A single employment termination could therefore affect not only one professional's immigration status, but potentially the employment, schooling, housing, and broader stability of an entire family.
What the Proposal Could Mean for Employers
If finalized, the rule could change immigration planning for U.S. companies as much as it changes planning for foreign workers.
Employers recruiting H-1B and other employment-based nonimmigrants may need to accelerate onboarding and petition preparation.
Companies contemplating layoffs or restructurings involving foreign national employees may also need to coordinate immigration analysis earlier in the termination process.
The timing of an employment termination could become considerably more consequential.
For employers, immigration planning may therefore need to become part of workforce planning before—not after—a termination decision becomes effective.
What Foreign Professionals Should Do Now
There is no reason for H-1B or other affected workers to panic or immediately change status solely because DHS published this proposal.
The current grace-period regulation remains in place.
However, the proposal is an important reminder that employment-based immigration status can be closely connected to continued qualifying employment.
Foreign professionals should maintain organized copies of their immigration records, know the expiration date on their I-94 and petition approval, understand their employer's sponsorship structure, and seek individualized advice promptly if they anticipate a layoff, resignation, corporate restructuring, or other interruption in employment.
Waiting until weeks after termination to evaluate immigration options could become considerably more problematic if the proposed rule ultimately becomes final.
What Happens Next?
The September 11 action is a Notice of Proposed Rulemaking—not a final rule.
DHS has opened the proposal to public comment. The agency may consider comments, modify the proposal, withdraw it, or ultimately publish a final rule.
Until a final rule takes effect, the existing regulation remains controlling.
That procedural distinction is critical. Employers and foreign nationals should plan for the possibility of change without treating a proposed regulation as though it were already law.
The Broader Significance
The significance of this proposal extends beyond a single 60-day period.
For many highly skilled foreign professionals, job loss already creates simultaneous professional, financial, and immigration uncertainty. The existing grace period provides a limited opportunity to separate an unexpected employment event from an immediate immigration-status crisis.
DHS now proposes to remove that buffer.
Whether the proposal ultimately becomes law—and in what form—will depend on the federal rulemaking process. But if finalized substantially as written, the change would make advance immigration planning considerably more important for both foreign professionals and the U.S. businesses that employ them.
For employers, the lesson is to integrate immigration counsel earlier into workforce decisions involving sponsored employees.
For foreign professionals, the lesson is equally important: immigration strategy should not begin on the 59th day after a job ends. In an environment where the regulatory framework may change, understanding available options before an employment transition occurs can make a significant difference.
This article is provided for general informational purposes only and does not constitute legal advice. Immigration outcomes depend on individual facts and circumstances, and proposed regulations may change before becoming final.