DHS Proposes Ending 60-Day Grace Period for H-1B and Other Foreign Workers

The Department of Homeland Security (DHS) has formally proposed eliminating the up-to-60-day grace period that gives certain foreign workers time to make new immigration arrangements after their employment ends.

The proposal, published in the Federal Register on Sept. 11, would apply to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, as well as their dependents.

If finalized, affected workers would generally begin failing to maintain their nonimmigrant status the day after their qualifying employment or activity ends, unless they are otherwise authorized to remain in the United States.

For now, however, nothing has changed. The current grace period remains available to eligible workers while the proposal goes through the federal rulemaking process.

What is DHS proposing?

DHS is proposing to remove the regulation that currently allows eligible workers and their dependents to be treated as maintaining their nonimmigrant status for up to 60 days after the employment supporting that status ends.

Under the proposal, workers would no longer have that period to remain in the United States while looking for another job or pursuing another immigration option. Instead, DHS says they would generally be expected to leave the United States when their qualifying employment or activity ends unless they have another legal basis to remain.

The change would apply to:

• E-1 treaty traders
• E-2 treaty investors
• E-3 specialty occupation workers from Australia
• H-1B specialty occupation workers
• H-1B1 workers from Chile and Singapore
• L-1 intracompany transferees
• O-1 workers with extraordinary ability or achievement
• TN professionals from Canada and Mexico

Their dependents would also be affected because their status is tied to that of the principal worker.

DHS says eliminating the grace period would more closely tie a worker’s immigration status to the employment or activity on which that status is based and reduce the administrative burden on USCIS.

How does the current grace period work?

Under the current rule, eligible workers and their dependents may be treated as maintaining their nonimmigrant status after the employment supporting that status ends.

That protection lasts for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter. It is available once during each authorized validity period, and DHS can shorten or deny it as a matter of discretion.

The rule covers workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, along with their dependents. Eligible individuals may use the period to seek an extension of stay or a change of status. The grace period itself does not authorize employment.

For eligible H-1B workers, separate job portability rules can allow employment with a new employer to begin once a qualifying petition is properly filed, or on the requested start date, whichever is later. That makes timely filing an important part of changing jobs.

What could eliminating the grace period mean?

The proposal could significantly reduce the amount of time workers have to respond to a job loss.

Currently, an eligible worker can use the grace period to search for another job and, depending on their circumstances, pursue options such as changing employers, changing immigration status, or applying for adjustment of status.

Without the grace period, workers whose employment ends could have to leave the United States before securing a new job and completing the necessary immigration steps. They could potentially return later if they obtain qualifying employment and the necessary immigration approval.

DHS acknowledges in the proposed rule that workers could face lost income and costs associated with leaving the United States, while employers could experience temporary productivity losses. The agency also notes potential effects on dependents, including spouses who are authorized to work.

DHS estimates that, on average, 3,795 workers per year had a new Form I-129 filed by a new employer within 60 days of their previous employer withdrawing an approved petition between fiscal years 2021 and 2025. About 99% of those workers were in H-1B status.

The proposal could also have immigration consequences for workers who remain in the United States after their employment ends without another basis to stay. DHS says affected workers would generally be considered to have failed to maintain status beginning the day after employment ends and could potentially be issued a Notice to Appear in immigration court.

Why does DHS want to eliminate the grace period?

The 60-day grace period took effect in 2017 and was intended to give certain foreign workers greater flexibility after their employment ended and make it easier for U.S. employers to hire workers changing jobs.

DHS now says it has reconsidered that policy.

The department argues that the grace period separates a worker’s lawful status from the employment or activity on which that status is based. It also says administering the grace period creates additional work for USCIS officers, who may have to determine when employment ended and whether the worker qualifies for some or all of the discretionary period.

DHS says USCIS reviewed more than 1.9 million petitions and applications between fiscal year 2018 and May 20, 2026, in which officers potentially had to assess whether the grace period applied.

What should workers and employers do now?

The proposal is not yet a final rule. Eligible workers can continue to use the existing grace period under current regulations.

Workers whose employment ends should promptly confirm their individual deadline and immigration options with an immigration attorney rather than assuming they automatically have a full 60 days.

Employers should also review how quickly their recruiting, human resources, immigration teams, and counsel can coordinate when employment changes affect sponsored workers.

If DHS ultimately issues a final rule, it will need to specify when the change takes effect. Until then, the current rules remain in place.

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