DHS Proposes Ending the 60-Day Grace Period After Job Loss. It Is Still Available Today.

The Department of Homeland Security proposed eliminating the discretionary grace period of up to 60 days that certain nonimmigrant workers may use after their employment ends. The notice of proposed rulemaking was published on September 11, 2026 and covers workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, plus their dependent spouses and children.

The most important fact is what did not happen: DHS did not end the grace period on September 11. This is a proposal, not a final rule. The current regulation remains in force, and DHS is accepting comments through November 10, 2026. Any actual change would require a final rule with an operative date.

What the current rule allows

Under 8 C.F.R. § 214.1(l)(2), DHS may treat a covered worker as having maintained status for up to 60 consecutive days after the employment or activity supporting that status ends. The same protection extends to qualifying dependents. The period cannot run past the expiration of the worker's authorized validity period, so the practical limit is the shorter of 60 days or the time remaining on the worker's status.

The grace period can apply after a resignation or an involuntary termination, but it is discretionary and available only once during each authorized validity period. USCIS generally decides whether to recognize, shorten, or eliminate it when adjudicating a later immigration filing. It should not be treated as an unconditional entitlement.

The grace period also does not itself authorize the former employee to keep working. Its function is to prevent the worker and dependents from being treated as out of status solely because the qualifying employment ended. During that time, a worker may be able to depart, have a new employer file Form I-129, apply to change status on Form I-539, file an otherwise available Form I-485 adjustment application, or seek a compelling-circumstances employment authorization document if all separate requirements are met.

What DHS proposes to change

DHS proposes deleting paragraph 214.1(l)(2). If a final rule adopts that language, a covered principal worker whose qualifying employment ends would generally be considered to have failed to maintain status beginning the next day, unless another legal basis authorizes the person to remain. Dependents whose status is tied to that worker would be affected at the same time.

That would make timing much less forgiving. A new employer's petition or a worker's change-of-status application often must be filed while the person is still maintaining status for USCIS to approve an extension or change inside the United States. Without the grace period, a filing made after the last day of employment may require a request for extraordinary discretionary treatment or may be approved only for consular processing, depending on the classification and facts.

The proposal does not repeal the separate statutory H-1B portability rule. An eligible H-1B worker can generally begin work for a new employer when USCIS receives a properly filed, nonfrivolous H-1B petition. But eliminating the grace period could make it essential for that filing to occur before the prior employment ends. For E-1, E-2, E-3, H-1B1, L-1, O-1, and TN workers, DHS states that work for a new employer generally cannot begin until the new petition is approved.

The proposal also leaves the separate periods described in paragraph 214.1(l)(1) in place. Those rules can permit up to 10 days before an authorized validity period begins and up to 10 days after it ends for listed classifications. They do not provide a substitute 10-day job-loss period when employment stops in the middle of an approved validity period, and they do not authorize employment during those extra days.

Dependents and employers are part of the analysis

A principal worker's job loss can affect an H-4, L-2, E, O-3, or TD dependent even when the dependent has a separate job, school schedule, lease, or pending application. DHS specifically recognizes that some H-4, L-2, and E spouses could lose work time or compensation if their dependent status ends with the principal's employment. Families should review every person's I-94, work authorization, and pending case together.

Employers also should not assume that a separation agreement or final paycheck answers the immigration question. The relevant date is when the qualifying employment or activity actually ceases under the governing classification and case facts. A prospective employer may need time for a labor condition application, supporting documents, signatures, filing, and, outside H-1B portability, approval. Planning only after the worker's final day could be too late if the proposal becomes final.

The proposal does not remove an employer's existing return-transportation obligation. DHS notes that an H-1B or O-1 petitioner that dismisses a worker before the end of the authorized period can remain responsible for the reasonable cost of return transportation abroad. The rule differs when a worker resigns voluntarily, and it does not automatically cover moving expenses or a dependent's travel.

What workers should do now

1. Do not assume the proposal changed today's deadline. If employment has already ended, calculate the current grace period from the actual cessation date and the I-94 expiration date. Because the period is discretionary, do not wait until day 60 to act.
2. Preserve the status record. Keep the passport, visa, current and prior Forms I-94, Forms I-797, pay records, termination or resignation notice, and evidence showing the last day of qualifying work. Collect the same records for dependents.
3. Compare real options before filing. A new employer petition, change to another nonimmigrant classification, adjustment of status, compelling-circumstances EAD, and departure each have separate eligibility and timing rules. Filing something merely to create time can produce later status or credibility problems.
4. Plan before a known separation. When a layoff, contract end, or resignation date is foreseeable, assess whether a new petition or other filing can be submitted while employment is still active. Employers should build immigration lead time into workforce decisions.
5. Do not keep working without authorization. The current grace period protects status only within its terms. It does not authorize work for the former employer, consulting, freelancing, or work for a new employer unless a separate rule permits it.

How and when the proposal could become law

Comments are due by 11:59 p.m. Eastern Time on November 10, 2026, under DHS Docket No. USCIS-2026-0364. The official docket is the place to submit and review comments. DHS asks commenters to identify the specific part of the proposal, explain the requested change, and support it with data or authority. Comments are generally public, so personal details should be limited.

After the comment period, DHS could withdraw the proposal, revise it, or publish a final rule. The September 11 notice does not establish the date on which the grace period will disappear, and it does not say that people using the current rule have already lost it. A future final rule would need to address its effective date, and litigation could affect implementation.

The practical response is preparation, not panic. Workers who may change jobs should understand the current rule now and watch the Federal Register for the next official action. If a termination, new offer, dependent's work authorization, or pending green card case makes the timing important, you can contact Zero One Legal through the existing screening process to discuss whether the firm can assist or direct you to appropriate counsel.

This article provides general educational information and is not legal advice. Immigration rules, forms, fees, and procedures can change, and the law may apply differently to individual facts. Reading this article or contacting Zero One Legal does not create an attorney-client relationship. No result is guaranteed.