The U.S. Department of Homeland Security (DHS) has issued a proposed rule that would eliminate the discretionary grace period of up to 60 days currently available to certain employment-based nonimmigrant workers — and their dependents — after employment ends. If finalized, affected workers would generally need to depart the United States immediately upon cessation of the employment or activity underlying their status, unless they are otherwise authorized to remain in the United States.
This is a proposed rule only and is not currently in effect. The existing discretionary grace-period regulation remains in place unless and until DHS issues a final rule with an effective date. Written comments on the proposal are due by November 10, 2026, under DHS Docket No. USCIS-2026-0364.
What DHS Is Proposing
On September 11, 2026, DHS published a notice of proposed rulemaking titled Eliminating the Discretionary 60-Day Grace Period. The proposal would remove 8 C.F.R. § 214.1(l)(2), which currently permits DHS, as a matter of discretion, to treat certain workers as having maintained nonimmigrant status for up to 60 consecutive calendar days following the end of employment, or until the end of their authorized validity period, whichever is shorter.
The proposed change would apply to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications, as well as their dependent family members.
How This Would Change Current Practice
Under the current rule, an eligible worker whose employment ends — whether voluntarily or involuntarily — may have up to 60 days to pursue another immigration option. If the proposal becomes final as drafted, that transition period would no longer be available. Affected workers generally would be expected to depart immediately when the qualifying employment or activity ends unless, at that time, they have another independent basis to remain lawfully in the United States.
Potential Impact on Employers and Employees
Less time to respond to employment changes. Employers and workers may need to make immigration decisions before a worker’s last day of employment rather than relying on a post-termination grace period.
Greater urgency in filing. Prospective employers may need to accelerate petition preparation and filing when hiring workers from another employer.
Increased separation-planning considerations. Employers should coordinate closely with immigration counsel when setting termination dates, notice periods, severance arrangements, garden leave, or payroll end dates.
Consequences for dependents. Because dependent status generally follows the principal worker’s status, spouses and children may also be affected immediately when the principal’s qualifying employment ends.
Possible disruption for workers and employers. Without a transition period, workers may face abrupt departures, and employers may have less flexibility to recruit nonimmigrant workers whose prior employment has ended.
Reduced ability to attract highly skilled workers. The elimination of the grace period may also discourage highly skilled individuals from choosing to work in the United States.
Employers and affected workers should closely monitor the rulemaking and promptly consult immigration counsel if the proposal may affect them. We will provide additional updates as the rulemaking develops.