The Department of Homeland Security (DHS) published a proposed rule on September 11, 2026, that would eliminate the discretionary 60-day grace period now available to workers in several employment-based visa categories after their job ends. US Citizenship and Immigration Services (USCIS) is taking public comments on the proposal, titled “Eliminating the Discretionary 60-Day Grace Period,” through November 10, 2026, under docket number USCIS-2026-0364.
Under the regulation now in effect, 8 CFR 214.1(l)(2), a nonimmigrant in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status, along with dependent family members, may remain in the United States for up to 60 days after their job or qualifying activity ends, or until their authorized stay expires, whichever comes first. During that window, the worker is not considered to have violated their status solely because the underlying employment ceased. DHS’s proposal would remove that provision from the regulations entirely, so that a worker in one of those categories would generally be expected to leave the country immediately once the job that supports their status ends, unless another lawful basis to remain already exists.
DHS created the grace period through a rule published November 18, 2016, effective January 17, 2017, in the final weeks of the Obama administration. The rule was intended to give workers displaced by a layoff or a company closure time to find a new sponsor, change status, or wind down their affairs without an automatic status violation.
What DHS Says Justifies the Change
DHS cites three reasons in the Federal Register notice. First, the department argues the grace period conflicts with the underlying statute, which ties these visa categories directly to a specific job or activity, so a worker should not be treated as maintaining status once that job ends. Second, DHS says the discretionary, case-by-case nature of the grace period is administratively burdensome, citing more than 1.9 million petitions and applications that have required a grace-period assessment since October 2017. Third, the department frames the change as restoring what it calls program integrity by keeping status tied directly to qualifying employment.
DHS’s regulatory impact analysis estimates opportunity and travel costs of $204.43 USD to $300.53 USD per person for beneficiaries who must respond to a Notice to Appear and attend an immigration hearing, and projects that about 3,795 visa holders a year will lose income during a compressed job search.
The Rule’s Reach Extends Beyond H-1B Workers
DHS’s own figures show H-1B holders make up 99 percent of those affected, but the scope is broader than one visa category. Agency data cited in the rulemaking put the number of primary beneficiaries who experienced an employment cessation or change at 65,752 a year on average, plus roughly 208,187 affected dependents annually — spouses and children whose status rides on the principal worker’s. Combined across fiscal years 2021 through 2025, DHS counts more than 1,040,935 dependents in that position. Form I-539, the application dependents and many others use to extend or change status, and Form I-765, the work-permit application, are also used well outside these eight visa categories.
Attorneys Question the Administrative-Burden Argument
Green & Spiegel attorney Jonathan Grode has pushed back specifically on DHS’s efficiency rationale. “The DHS argument in the proposed rule on reducing administrative burden is counterintuitive,” Grode told Forbes contributor Stuart Anderson, arguing that removing the grace period will instead increase filings, since workers who previously used the window to find new sponsorship or change to visitor status will now have to file Form I-539 applications in a hurry, or leave and restart the process from outside the country. Writing for the Cato Institute, Anderson, who is also executive director of the National Foundation for American Policy, went further, arguing DHS has not shown that the existing grace period causes the problems it claims to fix, and that the change cuts against the labor-mobility protections Congress built into the American Competitiveness in the Twenty-First Century Act.
“Without the grace period, a layoff can change the course of my entire life overnight.”
— Maya, an H-1B visa holder, quoted by Forbes contributor Stuart Anderson
A Second DHS Rule Took Effect Days Earlier
The grace-period proposal lands four days after a separate, unrelated DHS rule took effect on September 15, 2026, ending open-ended “duration of status” admission for foreign students, exchange visitors, and representatives of foreign media, replacing it with fixed admission periods. The two rules are legally distinct and were not proposed together.
What Comes Next
Nothing changes yet. The 60-day grace period stays in effect while DHS reviews public comments, which are due by November 10, 2026, and until a final rule is published. Reddy Neumann Brown, a Houston immigration firm, is advising affected workers and families to use the comment period to document concrete reliance interests tied to the current rule — a mortgage, a child’s school enrollment, a working spouse, a pending green card case — and advising employers to document the operational cost of the change, including rehiring expenses, mid-validity terminations, and visa-appointment delays at specific consular posts. Comments can be filed directly through the regulations.gov docket.
Headline photo: A rubber stamp marking a visa page in a passport. (Photo: Image by jaydeep_ from Pixabay)