The Department of Homeland Security (DHS) issued a proposed rule that would eliminate the discretionary 60-day grace period currently available to certain employment-based nonimmigrant workers following the cessation of employment. The proposal would represent a significant change for H-1B workers and other affected nonimmigrants who currently rely on the grace period to obtain new employment, pursue another immigration status, or otherwise arrange their departure from the United States.

DHS will accept public comments on the proposal until November 10, 2026. After DHS has reviewed and considered comments, it may publish a final rule. The final rule may be modified from the original proposal. The current 60-day grace period remains available until a final rule is implemented.

Who Would Be Affected?

The proposed rule would eliminate the 60-day grace period for nonimmigrants in the following classifications, as well as their qualifying dependents:

• • E-1 treaty traders;
• • E-2 treaty investors;
• • E-3 Australian specialty occupation workers;
• • H-1B specialty occupation workers;
• • H-1B1 workers from Chile and Singapore;
• • L-1 intracompany transferees;
• • O-1 individuals of extraordinary ability or achievement; and
• • TN professionals.

These classifications generally tie the individual’s lawful status to the employment or other qualifying activity that formed the basis for admission or approval.

What Is the Current 60-Day Grace Period?

Under current rules, an eligible worker whose employment ends may remain in the United States for up to 60 days, or until the end of the I-94 expiration period, whichever is shorter, without being considered to have failed to maintain status solely because employment has ceased. The grace period is discretionary and may be shortened by U.S. Citizenship and Immigration Services (USCIS).

During the grace period, a worker could potentially:

• • obtain a new job and have a new employer file an I-129 petition;
• • change to another nonimmigrant classification, such as B-2 (tourist/visitor);
• • pursue adjustment of status to lawful permanent resident status, if eligible; or
• • make other arrangements to maintain lawful status or depart the United States.

What Would the Proposed Rule Change?

If finalized as proposed, the rule would eliminate the 60-day period following cessation of employment. Instead, an affected nonimmigrant generally would be considered to have failed to maintain status immediately following the cessation of the employment or activity that supported the nonimmigrant classification, unless the individual has another independent basis to remain lawfully in the United States and timely files an application to change or amend status.

Impact on H-1B Portability

The proposal could substantially change the practical operation of H-1B portability.

Under the current rules, an H-1B worker whose employment terminates may use the 60-day grace period to locate a new employer and have that employer file an H-1B petition requesting a change of employer and extension of stay. The grace period can provide a bridge between jobs. The H-1B worker may remain in the United States and may commence employment with the new employer once the new employer petition is filed.

Without the grace period, a worker who has already ceased employment generally would no longer be able to rely on the 60-day period to preserve H-1B status and remain in the United States while searching for a new position. Because an extension or change of status ordinarily requires the beneficiary to have maintained the prior status, the worker may not be eligible to change employers while in the U.S. and would instead need to depart the United States while awaiting approval of a new H-1B petition. If the worker also requires a visa for readmission to the U.S., the ability to secure a visa appointment at the U.S. consulate could significantly delay the sponsored worker’s ability to return to the United States.

The 10-Day Post-Petition Grace Period Remains

The proposed rule would not eliminate the 10-day grace period associated with the end of the petition validity period. The 10-day grace period generally applies only after the underlying petition validity period ends. It does not provide a grace period for a worker whose employment ends during the petition validity period.

Significant Impact on Employers and Workers

The proposed rule would make employment changes considerably more time-sensitive.

Workers facing termination or considering voluntary resignation would have substantially less flexibility to identify a new employer and preserve their ability to remain in the United States.

Employers aiming to hire a nonimmigrant worker whose underlying employment has ended should expect additional hurdles and longer timelines for hiring and onboarding the worker.

Employers contemplating termination of an H-1B, L-1, O-1, E-3, TN or other affected worker should also consider the immigration consequences to the worker earlier to facilitate appropriate planning.

No Immediate Change—Rule Is Only Proposed

DHS is soliciting public comments on the proposal for the next sixty days, until November 10, 2026. Unless and until a final rule is implemented, the 60-day grace period remains available.

Bottom Line

If finalized as proposed, DHS’s rule would mark a significant departure from current policy. Workers in H-1B, L-1, O-1, E-1, E-2, E-3, H-1B1 and TN status would generally no longer have up to 60 days after termination of employment to remain in the United States while seeking new employment or another immigration solution. Instead, they would generally be expected to depart upon cessation of the employment or activity underlying their status, unless they have another independent basis for remaining lawfully in the United States.

Because this is only a proposed rule, no immediate action is required under the proposal. Nevertheless, nonimmigrant workers and their employers should begin assessing the potential immigration and operational impact now.

For additional information, please contact your Van Der Hout representative.