The Department of Homeland Security (DHS) has published a proposed rule that would eliminate the current discretionary 60-day grace period available to certain employment-based nonimmigrants following the end of their employment. The proposal would affect foreign nationals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, as well as their dependents.
Timing: This Is a Proposed Rule
This is not yet a final rule. The proposed rule is scheduled for publication in the Federal Register on September 11, 2026, which will trigger a 60-day public comment period. DHS will review public comments before determining whether to issue a final regulation.
Major Change: Elimination of the 60-Day Grace Period
Currently, H-1B, L, O, and TN workers who are laid off may receive a discretionary grace period of up to 60 days (or until the end of their authorized stay, whichever is shorter) to:
- Find a new employer;
- File a change of status;
- Apply for adjustment of status; or
- Otherwise maintain lawful presence in the United States.
DHS now proposes to eliminate that provision entirely.
If finalized, foreign nationals would generally be expected to leave the United States immediately upon cessation of the employment or activity that formed the basis of their status, unless they already possess another independent lawful basis to remain in the country.
Out of Status the Next Day
DHS makes clear that, under the proposal, a worker who stops performing the employment or activity underlying their status would be considered to have failed to maintain status beginning the day after the employment ends.
The agency states that this would restore its historical policy prior to the 2017 implementation of the grace period rule.
Immigration Consequences Could Be Significant
DHS notes that once a worker fails to maintain status:
- The individual may become removable (deportable) under INA §237(a)(1)(C).
- DHS could issue a Notice to Appear (NTA) initiating removal proceedings.
- The individual may become ineligible for certain future immigration benefits.
- Depending on the circumstances, unlawful presence consequences could arise under existing immigration law.
Why DHS Is Proposing the Change
DHS argues that the current grace period:
- Disconnects lawful status from the employment or activity that forms the basis for admission.
- Creates administrative burdens for USCIS adjudicators.
- Complicates determinations regarding maintenance of status.
- Is not required by statute.
The agency states that eliminating the grace period would better align the regulations with the statutory framework governing employment-based nonimmigrant classifications.
Erickson Insights & Analysis
Erickson Immigration Group will continue to monitor developments and share updates as more news becomes available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or if you have case-specific questions.