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

On September 11, 2026, the Department of Homeland Security (DHS) published a proposed rule that would eliminate the discretionary grace period of up to 60 days currently available to certain employment-based nonimmigrants following termination or other cessation of employment. The proposal would affect workers in H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3, and TN classifications, as well as their dependent family members. This is a proposed rule only; the existing 60-day grace period remains available under current regulations.

Key Points:

Current rule: Eligible workers may currently be considered to have maintained lawful nonimmigrant status for up to 60 consecutive days after employment ends, or until the end of their authorized I-94 validity period, whichever is shorter.
Proposed change: DHS proposes eliminating this grace period. If finalized as proposed, an affected worker generally would begin failing to maintain nonimmigrant status the day after the qualifying employment or activity ends, unless otherwise authorized to remain in the United States.
H-1B portability remains: The proposal does not eliminate statutory H-1B portability. An eligible H-1B worker could still begin working for a new employer upon proper filing of a qualifying H-1B petition, but completing the LCA and petition process quickly would become substantially more important.
Layoffs and terminations: Workers experiencing an unexpected termination would no longer have the current regulatory period following cessation of employment to seek new employment, pursue another immigration option, or arrange an orderly departure.
Comment deadline: Public comments on the proposed rule are due November 10, 2026.

If finalized, the proposal would significantly affect both foreign workers and employers recruiting foreign nationals following layoffs or other employment terminations. Employers may need to coordinate with immigration counsel earlier during terminations and move considerably faster when hiring affected H-1B and other nonimmigrant workers.

While the proposal is not yet effective, employers should nevertheless monitor the rulemaking and consider its potential impact on termination, recruitment, and immigration-sponsorship procedures.

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This update is provided for general informational purposes only and does not constitute legal advice. If you require specific advice and consultation, please call us at 508-790-1181.