What's Happening?
The Department of Homeland Security (DHS) has proposed a new rule to eliminate the 60-day grace period currently afforded to H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3, and TN nonimmigrant workers. This grace period, established in 2016, allows these workers and their
dependents to remain in the U.S. for up to 60 days after their employment ends without being considered out of status. The proposed rule, DHS Docket No. USCIS-2026-0364 (RIN 1615-AD22), would remove 8 CFR 214.1(l)(2) from regulations. If finalized, nonimmigrant workers would be deemed to have failed to maintain status the day after their employment ceases, necessitating immediate departure unless they have separate authorization to remain. DHS justifies this change by citing statutory alignment, arguing that lawful status should end with employment, and administrative burden, as adjudicators spend resources assessing the grace period's applicability on over 1.9 million petitions and applications between FY 2018 and May 2026. The agency acknowledges this reverses its 2016 position.
Why It's Important?
The elimination of the 60-day grace period would significantly impact high-skilled nonimmigrant workers and U.S. employers. The current grace period provides a crucial window for workers to find new employment, file for a change of status, or prepare for departure without accruing unlawful presence. Without it, workers who lose their jobs would immediately fall out of status, facing potential deportability, accrual of unlawful presence (leading to three or ten-year bars from re-entry), and bars to adjustment of status. This would severely restrict job portability and flexibility for high-skilled talent, making it harder for U.S. employers to retain and transition nonimmigrant workers. The proposal also affects dependents, with an estimated 208,187 individuals annually and over a million between FY 2021 and FY 2025 potentially losing their status concurrently. The change could also complicate the use of the compelling circumstances EAD, a safety valve designed for involuntary job loss scenarios, as applicants must be in a qualifying status to file.
What's Next?
The public comment period for this proposed rule is open until November 10, 2026. DHS has specifically invited comments on potential reliance interests implicated by the rule. Employers are encouraged to provide detailed accounts of how the current grace period affects their operations, including costs associated with rehires, project timelines, and staffing when workers must depart the U.S. for consular processing. Workers and their families are urged to share personal stories detailing how they have relied on the current rule for mortgages, leases, schooling, and green card processes. Specificity in comments, including data and supporting information, is crucial. The interaction of this proposed rule with H-1B portability, the compelling circumstances EAD filing window, and the absence of transition provisions for current workers are key areas for public input. Legal firms are preparing to submit comments and assist employers in developing their own, emphasizing the importance of a robust administrative record to challenge the rule if it is finalized.
Beyond the Headlines
This proposed change reflects a broader shift in immigration policy, potentially prioritizing stricter enforcement over the flexibility and stability previously afforded to high-skilled nonimmigrant workers. The DHS's reversal of its 2016 stance, which aimed to enhance job portability and make it easier for U.S. employers to hire nonimmigrant talent, signals a re-evaluation of the balance between immigration controls and economic needs. The argument of administrative burden, while presented, may be viewed critically by those who see the grace period as a vital component of a functional high-skilled immigration system. The potential for increased 'out of status' situations could lead to a chilling effect on foreign talent seeking employment in the U.S., impacting innovation and competitiveness in key industries. Furthermore, the lack of clarity on how H-1B portability would interact with immediate loss of status creates significant legal and practical ambiguities for both employers and employees, potentially leading to increased litigation and uncertainty in the immigration landscape.
