The U.S. Department of Homeland Security (DHS) is considering a significant change to the immigration rules that currently give certain non-immigrant workers up to 60 days to respond after their employment ends.
On August 6, 2026, DHS submitted a proposed rule titled “Eliminating the Discretionary 60-day Grace Period” to the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. The proposal has been identified as RIN 1615-AD22. The full text of the proposed regulation has not yet been made public.
If ultimately implemented, the proposal could significantly affect employment-based non-immigrants who lose their jobs unexpectedly.
What Is the 60-Day Grace Period?
Under current U.S. immigration regulations, certain employment-based non-immigrant workers may receive a discretionary grace period of up to 60 consecutive days following the end of their employment, or until their authorized period of stay expires, whichever comes first.
The provision was introduced in 2016 and became effective in 2017. It was designed to give eligible foreign workers additional time to respond to an unexpected termination of employment.
During the grace period, an eligible worker may generally:
- Seek a new employer willing to sponsor them;
- Have a new employer file an appropriate petition;
- Explore whether a change of immigration status is available;
- Take steps to preserve lawful immigration status; or
- Make arrangements to leave the United States.
The 60-day period is not a guarantee of 60 days in every case. The applicable period can be shorter if the worker’s existing authorized stay expires sooner, and the regulation gives DHS discretion in certain circumstances.
Which Visa Categories Could Be Affected?
The existing 60-day grace-period regulation applies to several employment-based non-immigrant classifications, including:
- H-1B — specialty occupation workers;
- H-1B1 — certain workers from Chile and Singapore;
- L-1 — intracompany transferees;
- O-1 — individuals with extraordinary ability or achievement;
- E-1 and E-2 — treaty traders and treaty investors;
- E-3 — certain Australian specialty occupation professionals; and
- TN — qualifying Canadian and Mexican professionals.
Eligible dependents can also be affected by changes to the principal worker’s immigration status.
Because the proposed rule has not yet been published, it is not currently possible to confirm exactly which categories or circumstances would be covered by the final proposal. DHS may also modify the proposal before publication.
What Would Happen If the 60-Day Grace Period Is Eliminated?
The most significant consequence would be a much shorter timeframe for workers who lose their employment.
At present, an eligible worker who is terminated before the end of their authorized period of stay may have time to secure another immigration solution. Eliminating the grace period could substantially reduce that flexibility.
For example, an H-1B worker who is unexpectedly laid off may currently have up to 60 days to find a new sponsoring employer or pursue another lawful immigration option. If DHS removes the grace period, the worker could face much more immediate immigration consequences following termination.
This could be particularly challenging for workers who require time to:
- Find an employer willing to sponsor a new petition;
- Complete recruitment and onboarding procedures;
- Prepare and file an immigration petition;
- Consider a change of status;
- Coordinate immigration arrangements for dependent family members; or
- Arrange an orderly departure from the United States.
The Proposal Is Not Yet Law
It is important to distinguish between a proposed rule and a final rule.
DHS has not yet published the proposed regulation in the Federal Register. The proposal is currently undergoing review by OIRA. The regulatory text and any proposed implementation or transition provisions therefore remain unknown.
If DHS proceeds, the normal rulemaking process would involve publication of the proposed rule, an opportunity for public comment, review of those comments and, potentially, publication of a final rule.
The current 60-day grace-period rules therefore remain in effect unless and until they are lawfully changed.
Workers and employers should not assume that the grace period has already been eliminated.
What Should Employers Do Now?
Although no immediate change has been made to the current grace-period rules, employers with foreign national employees should monitor this development closely.
Businesses may wish to:
- Review their sponsored workforce and identify employees in H-1B, L-1, O-1, E and TN status.
- Review termination procedures to ensure immigration considerations are addressed when employment ends.
- Coordinate with immigration counsel before terminating or significantly changing the employment of a sponsored worker.
- Review I-94 expiration dates and petition validity periods for sponsored employees.
- Consider contingency planning for employees who could be affected if the proposed rule is ultimately adopted.
- Monitor the Federal Register and DHS announcements for publication of the proposed rule and any subsequent final rule.
What Should Non-immigrant Workers Do?
Foreign workers should not panic, but they should take the proposal seriously.
If you hold H-1B, L-1, O-1, E, TN or another potentially affected status, it may be sensible to understand your immigration options before an employment problem arises.
If you are facing a potential layoff or termination, do not wait until the end of a grace period to seek immigration advice. Depending on your circumstances, options may include a new employer-sponsored petition, a change of status, or departure from the United States.
The appropriate strategy will depend on your visa category, current I-94 validity, employment history, family circumstances and eligibility for another immigration pathway.
Davies Legal Immigration
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