This is a written summary of the “H-1B Grace Period Elimination” YouTube session
Quick answer: Not yet, but it’s coming. On September 11, 2026, DHS published a proposed rule to eliminate the 60-day grace period for H-1B, L-1, E, O, and TN workers (and their dependents) who lose their job. The rule is not in effect. Today, the grace period still applies. The proposed effective date is expected in the first half of 2027, and the public comment period is open through November 10, 2026.
What Is the 60-Day Grace Period?
The grace period is a discretionary window — up to 60 days, or the remainder of the worker’s authorized stay, whichever is shorter, that lets certain employment-based nonimmigrants remain lawfully in the U.S. after their job ends, so they can find a new sponsor, change status, or wind down their affairs before departing. It applies once per validity period and covers the major employment-based nonimmigrant categories: H-1B, H-1B1, L-1, E-1, E-2, E-3, O-1, and TN, along with their dependents.
Before this grace period existed, there was no cushion at all. Losing a job meant a worker was immediately out of status. USCIS created the 60-day window in a 2016 rule, effective January 17, 2017, specifically to give high-skilled workers facing a sudden layoff a realistic chance to find a new employer, change categories, or arrange an orderly departure, rather than being forced to scramble the same day.
What Is DHS Proposing to Change?
DHS’s proposed rule (Federal Register, September 11, 2026; DHS Docket No. USCIS-2026-0364; RIN 1615-AD22) would eliminate the discretionary grace period entirely and revert to the pre-2017 framework. Under the proposal, the moment employment ends, whether by termination, layoff, or resignation, the worker is immediately out of status. There is no built-in window to look for a new job, file a change of status, or make arrangements to leave the country.
As Sam Shihab put it on the livestream: “Zero grace period, zero common sense.” Under the current rule, someone who’s laid off has up to 60 days to sort things out. Under the proposed rule, the practical advice becomes: the moment you’re notified you’re terminated, you need to be filing a change of status online that same day and filing more than one application, in case the first is rejected on a technicality, because there’s no longer any margin for error.
Why Does DHS Say It’s Doing This?
DHS’s stated justification is administrative burden. Under the rule, USCIS adjudicators must review payroll records—pay stubs, W-2s—to determine when a worker’s employment actually ended, then calculate whether that worker still falls within a 60-day grace-period window before deciding whether status was maintained. DHS characterizes this case-by-case calculation as an overwhelming burden that justifies eliminating the underlying benefit rather than streamlining verification.
DHS’s own filing puts a number on the scale of this burden: approximately 1.9 million petitions it says are potentially affected, made up of five filing categories — Form I-129 requests for extension of stay, Form I-129 requests for change of status to H-1B, Form I-539 applications, Form I-765 applications based on compelling circumstances, and Form I-485 adjustment of status applications — counted from October 2017 through May 2026.
Do DHS’s Own Numbers Actually Support This?
Not clearly. And DHS’s own document is the source of the doubt. In a footnote to that 1.9 million figure, DHS admits: “due to data limitations DHS uses this population as a reasonable proxy to estimate the population that could have used the grace period, as data on aliens using the grace period is not captured on a form or otherwise reported to USCIS.” In plain terms, DHS is acknowledging it does not know how many of those 1.9 million petitions ever involved the grace period — it’s an estimate built from adjacent filing categories, not a measured count.
Elsewhere in the very same rule, DHS’s own cost-benefit analysis (Table 1, Section V.A.1) puts a much smaller number on the actual population it expects to be economically affected: just 3,795 nonimmigrant visa beneficiaries. That’s a gap of roughly 500-fold between the two figures DHS relies on in the same document—one used to justify the burden claim, the other used to calculate the rule’s actual cost-benefit impact.
Notably, DHS’s own “Alternatives Considered” section (Section IV.E) shows it looked at, and rejected, a much lighter-touch fix: imposing clearer, more precise evidentiary requirements so adjudicators wouldn’t have to guess whether a grace period applies in a given case — functionally similar to an intake checkbox asking, “are you invoking the grace period in this filing?” DHS’s own words on why it rejected that option are revealing: “While it may ostensibly reduce administrative burden on USCIS… this approach would not address DHS’s goal of aligning the regulatory provisions with the statute and restoring the expectation that aliens depart the United States upon cessation of the employment or activity.” DHS says almost the same thing about simply shortening, rather than eliminating, the grace period — rejected because it “would also not meet the goal of requiring aliens… to depart the United States.” Read plainly, DHS is telling us the burden argument is not the actual reason for the rule.
There’s also a funding wrinkle worth noting: USCIS is roughly 97% funded by filing fees, not taxpayer dollars, meaning the “burden” DHS describes is a burden it is already being paid to handle through the fees applicants submit with their petitions. USCIS also recently implemented a $100,000 H-1B filing fee — but according to the rule DHS relies on for that fee, none of that revenue is earmarked specifically for adjudicating grace-period cases.
Where Does the Adjudication Work Actually Go?
USCIS already reviews pay stubs and W-2s to confirm status maintenance on essentially every H-1B extension — that underlying task doesn’t disappear under this rule. What disappears is the domestic option to resolve it: a worker who loses a job is instead pushed into consular processing abroad, where visa-stamping backlogs in India and China — the two largest source countries for H-1B workers — already run from several months to well over a year at some posts. DHS is not eliminating the review; it’s relocating a task USCIS already knows how to do into a State Department system that is, by DHS’s own account elsewhere, already under significant strain.
Does the Rule Protect American Jobs?
DHS does not claim that, and its own economic analysis says so directly. When a position held by an affected worker opens up, DHS lists hiring a U.S. worker as just one of three interchangeable outcomes — alongside transferring the role to a different H-1B worker or reassigning the work internally within the company. Nothing in the rule requires that the vacated position actually go to a U.S. worker, and ordinary H-1B employers face no PERM-style recruitment requirement to test the domestic labor market before filling the role with another foreign worker.
How Does This Affect a Worker’s Ability to Report Wage Abuse?
Under the current rule, a worker who believes they’re being underpaid can file a Department of Labor complaint while still in valid status, with the grace period as a backstop if things go sideways. Without a grace period, an employer facing a wage complaint can respond with a same-day termination letter, immediately ending the worker’s lawful status, while a DOL investigation into the underlying complaint can take around seven months or longer to resolve. By the time DOL investigates, the worker may already be out of the country. Removing the grace period removes the practical leverage a worker currently has to report abuse without immediately risking their ability to remain in the U.S., handing employers considerably more leverage in exactly this kind of dispute.
How Does the U.S. Compare to Other Countries?
- Australia: expanded its grace period from 60 days to 180 days, effective July 2024 — moving in the opposite direction from the current U.S. proposal.
- Germany: Blue Card holders generally receive 3 to 6 months, depending on circumstances, to find new employment.
- United Kingdom: maintains a 60-day grace period for foreign workers, matching the U.S.’s current (soon to be eliminated) standard.
- Canada: the most restrictive of the group — a worker cannot begin new employment until a new work permit is issued. However, status is not immediately voided the way it would be under the proposed U.S. rule, and waivers exist that allow some workers to start earlier.
Every one of these peer countries currently offers a transition window equal to or longer than the U.S.’s current 60-day standard, and at least one (Australia) has recently made its window significantly more generous. If finalized, this rule would make the U.S. the most restrictive option among direct competitors for the same global talent pool.
Is There a Legal Risk for DHS Here?
The rule includes an unusually detailed discussion of “reliance interests” — DHS’s own language acknowledging that affected workers may have purchased homes, paid taxes, enrolled children in school, and otherwise built their lives in the U.S. around the expectation that the grace period would be available if their job ended. After walking through those acknowledgments, DHS concludes that any such reliance “would be misplaced,” since the grace period was always discretionary rather than guaranteed.
That pattern isn’t new for DHS. In 2020, the agency tried something similar when it ended the DACA program, and the Supreme Court didn’t let it stand. In Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), the Court found that DHS had simply skipped a required step: before undoing a policy people had structured their lives around, the agency has to actually account for that disruption — the mortgages, the jobs, the kids enrolled in school — not just note it and move on. DHS’s own reliance-interests section in this rule reads like an agency that has read that opinion closely and is trying to check the box the Court said was missing last time, even while reaching the same result.
What Should Workers Do Right Now?
- Nothing changes today. The rule is proposed, not final. The 60-day grace period still applies as of this writing, and remains in effect unless and until a final rule is published and takes effect.
- Watch the comment period. Public comments are open through November 10, 2026, and can be submitted through the Federal Register docket.
- Understand your options before a layoff happens, not after. If implemented and If you’re on H-1B, L-1, E, O, or TN status, know in advance what a same-day change-of-status filing, an employer transfer, or a dependent-status option (such as B-2, H-4 or L-2) would look like for your specific situation.
- If you are laid off, consider your timing options. If the rule is implemented, some employers may be willing to extend an official termination date, or restructure severance as continued (even limited, on-call) employment, to preserve a few extra days of status while a new filing is prepared. These arrangements must genuinely satisfy the legal definition of employment to be effective, so they should be discussed with an attorney before relying on them.
- Green card applicants should understand a separate protection. Employment-based adjustment of status applicants already benefit from INA § 245(k), which forgives certain periods of status violation (up to 180 days in the aggregate) independent of the 60-day grace period — a distinct and, in some respects, more generous protection that isn’t going away under this proposal.
- Talk to an immigration attorney now, particularly if you work for an employer where layoffs or terminations can happen suddenly and without advance notice. Being prepared for Plan B is not optional.
Frequently Asked Questions
Is the 60-day grace period gone right now?
No. The rule is proposed only. It is not in effect, and no final effective date has been set.
When would this rule take effect if finalized?
DHS has not published a confirmed effective date. Based on the typical rulemaking timeline following the current comment period, an effective date sometime in the first half of 2027 is a reasonable expectation — but this is an estimate based on how these processes usually unfold, not an official DHS commitment.
Can I still submit a comment on this rule?
Yes, through November 10, 2026, via the Federal Register docket (USCIS-2026-0364).
Does this affect green card applicants the same way it affects H-1B or L-1 workers?
Not identically. Employment-based adjustment of status applicants have a separate protection under INA § 245(k), which already forgives certain periods of status violation independent of the 60-day grace period this rule targets.
What should I do if I’m laid off before this rule takes effect?
The current 60-day grace period still protects you today. 09/23/2026). Consult an immigration attorney promptly to review your options. Consider a new sponsor, a change of status, or an orderly departure within that window.
Could this rule actually get finalized as written, or could it change?
It’s a proposed rule, which means it is subject to public comment and could be revised, narrowed, or withdrawn before any final version is published. The comment period is part of that process.
Talk to an Immigration Attorney About Your Options
This is a fast-moving regulatory process, and how USCIS ultimately implements it — if finalized — remains to be seen. If you’re on H-1B, L-1, E, O, or TN status and want to understand your options before any final rule takes effect, contact Shihab Burke Immigration Lawyers at immigrationvisaattorney.com or 614-791-0500. You can also submit your immigration question for one of our live Q&A sessions at ImmigrationQuestions.US.
This article is for general informational purposes only and does not constitute legal advice. Immigration law and regulations change frequently, and how this proposed rule may apply if finalized depends on your specific facts. Consult a licensed immigration attorney before making decisions based on this information.
