On Sept. 11, 2026, the Department of Homeland Security (DHS) published a proposed rule that would eliminate the discretionary 60-day grace period currently available to many employment-based nonimmigrants following the termination of their employment.
If finalized, the rule would represent one of the most significant policy changes affecting H-1B, L-1, O-1, E, and TN workers since the grace period was introduced in 2017.
Current 60-Day Grace Period
Under current regulations, certain nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, along with their dependent family members, may remain in the United States for up to 60 days following cessation of employment, or until the end of their authorized validity period, whichever is shorter. During this period, they are generally not considered to have failed to maintain status solely because their employment ended.
DHS originally implemented the policy to enhance job portability and provide high-skilled foreign workers with additional flexibility to pursue new employment opportunities or other immigration options without immediately departing the United States.
Proposed Change
DHS proposes to effectively eliminate the 60-day grace period altogether. Under the proposal, affected nonimmigrants would generally be expected to depart the United States immediately upon cessation of the employment or activity on which their status was based, unless another basis exists allowing them to remain lawfully in the country.
DHS Reasoning for the Proposal
DHS states that the current grace period creates a disconnect between nonimmigrant status and the employment activity that serves as the basis for that status. According to DHS, Congress designed these classifications to be directly tied to specific employment or professional activities, and individuals should no longer be considered to be maintaining status once those activities cease.
Potential Business, Immigration Impacts
If finalized, the proposal would significantly alter how employers and foreign workers respond to job loss, including:
- Reduced flexibility following termination
- Currently, a terminated H-1B, L-1, O-1, E, or TN worker often has time to secure a new job offer, have a new employer file a petition, file a change of status application, and/or explore other immigration options.
- Without the grace period, these individuals would generally be expected to leave the United States immediately upon cessation of employment unless another form of lawful status or authorized stay is already available.
- Increased employer challenges
- Employers seeking to hire foreign nationals who lose their jobs may face additional hurdles because candidates may need to depart the United States and await approval and readmission before beginning employment.
- Impact on dependents
- Dependent spouses and children whose status is tied to the principal nonimmigrant worker would also be affected. In many cases, dependent family members may need to leave the United States when the principal worker loses status.
Rulemaking Timeline, Next Steps
DHS is accepting public comments through Nov. 10, 2026. The agency must review comments and publish a final rule before any changes become effective.
Until a final rule is issued, the existing 60-day grace period remains in place.
Key Takeaways
Elimination of the 60-day grace period would fundamentally change how employment-based nonimmigrants navigate job transitions in the United States. For nearly a decade, the grace period has provided a critical buffer allowing workers and employers time to respond to unexpected job loss without requiring immediate departure. If DHS finalizes its proposal, foreign nationals in E, H-1B, L-1, O-1, and TN status may face significantly reduced flexibility following employment termination, and employers could encounter additional recruitment and retention challenges.
Please contact a Jackson Lewis attorney with any questions.
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