On September 11, 2026, the Department of Homeland Security (DHS) published a proposed rule that would eliminate the discretionary 60-day grace period currently available to certain employment-based nonimmigrant visa holders after their employment ends.
The proposal could affect individuals in E-1 (Treaty Trader), E-2 (Treaty Investor/Specialized Skills/Manager), E-3 (Specialized Worker/Australian Nationals), H-1B (Skilled Worker), L-1 (Intra-company Transferee), O-1 (Extraordinary Ability), TN (Professional Worker under USMCA for Canadian and Mexican nationals), and other categories, as well as their dependents.
It is important to understand that this is only a proposed rule. The 60-day grace period has not been eliminated and remains available under the current regulations.
What Is the Current 60-Day Grace Period?
Under the current rule, certain nonimmigrant workers whose employment ends before their authorized stay expires may receive a discretionary grace period of up to 60 consecutive days, or until the end of their authorized validity period, whichever is shorter.
The grace period can provide valuable time to consider available immigration options after an unexpected termination or other end of employment.
Before 2017, foreign workers on visas like H-1B, L-1, or O-1 who lost their job fell out of legal status immediately, even if they were about to leave the country. The 60-day grace period fixed this by giving them time to find a new sponsor, change their status, or pack up and go without penalty. It was part of a 2016 effort to modernize work visas, helping skilled workers stay flexible and keeping the U.S. labor market steadier during layoffs.
Example: A Canadian civil engineer in TN status (under NAFTA, now USMCA) is unexpectedly laid off during COVID. Their I-94, the record of their authorized stay, is valid through September 15, 2022. Without a grace period, they would have been out of status the moment employment ended, despite the valid I-94. Why? A valid I-94 alone isn’t enough. Status must be maintained at all times, which for a TN worker means continuing to work for the sponsoring employer.
The grace period starts the day after employment ends, usually the last day wages or salary were paid. During this time, the worker can prepare to leave by settling rental arrangements, gathering belongings, and making travel plans. If another employer offers a job and files a petition within the 60 days, the worker remains in a period of authorized stay while it is pending.
The grace period does not authorize work, and it is discretionary. USCIS can shorten or eliminate it based on the worker’s compliance history, prior filings, and adherence to visa terms.
What Is DHS Proposing?
DHS is proposing to remove the regulation that provides the up-to-60-day grace period.
If the proposal becomes a final rule in its current form, affected nonimmigrant workers would generally be required to depart the United States when the employment or activity underlying their status ends, unless they have another lawful basis to remain in the country.
DHS states that the proposed change is intended to more directly connect a person’s nonimmigrant status with the employment or activity upon which that status was granted and to reduce the administrative burden associated with the current grace period.
You can read theDHS proposed rule in the Federal Register.
Who Could Be Affected?
The proposed rule applies to workers in:
- E-1 Treaty Trader status
- E-2 Treaty Investor status
- E-3 Australian Specialty Occupation status
- H-1B and H-1B1 status
- L-1 Intracompany Transferee status
- O-1 Extraordinary Ability status
- TN status for qualifying Canadian and Mexican professionals
It would also affect qualifying dependents whose status is connected to the principal visa holder.
What Should Visa Holders Do Now?
Nothing has changed yet.
The existing 60-day grace period remains in place while DHS proceeds through the federal rulemaking process.
However, anyone in an employment-based nonimmigrant status should be aware of the proposal, particularly if they are considering changing employers or are concerned about a possible termination.
If the rule is finalized, planning ahead could become significantly more important because affected workers may have much less time to take action after employment ends.
The proposed rule is currently open for public comment through November 10, 2026.
Frequently Asked Questions
Has the 60-day grace period already been eliminated?
No. DHS has issued a proposed rule, not a final rule. The current up-to-60-day discretionary grace period remains in effect.
Which visa holders currently qualify for the 60-day grace period?
The regulation applies to certain workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classifications, as well as their dependents.
Does the 60-day grace period allow me to continue working?
No. The grace period may allow an eligible worker to remain in the United States after employment ends, but it does not by itself provide authorization to continue working.
What happens if the proposed rule becomes final?
If finalized as proposed, the regulatory grace period of up to 60 days would be eliminated. Affected workers would generally need to leave the United States when the employment or activity underlying their status ends, unless they have another lawful basis to remain.
Example: An H-1B worker who fears a layoff and is preparing to file for a Green Card would face critical timing. Without the grace period, a layoff could end the worker’s lawful status before the filing, putting the Green Card application at risk.
When would the new rule take effect?
There is currently no effective date because this is only a proposed rule. DHS must complete the rulemaking process before any final change can take effect.
What documents should workers keep ready in case their employment ends suddenly?
It is advisable for foreign workers to keep documents up to date, organized and easy to access including the following:
- An evaluation of foreign educational credentials
- An updated résumé or CV that includes specific performance metrics
- Performance evaluations related to their work product
- W-2 statements showing continuous maintenance of status
- Pay statements, especially the last three before termination
- A current, valid passport, which is always important
Is there another anonymized example you could share where acting quickly protected someone’s status?
In one case, an H-1B worker was laid off without warning. Within two weeks, she filed a request to change her status to B-2 visitor, based on a genuine plan to stay temporarily while settling her affairs, and she had enough savings to support herself. That filing kept her in a period of authorized stay. A new employer later filed an H-1B petition on her behalf, and she was able to return to work without leaving the United States.
Her case shows why speed matters. Under the 60-day grace period for certain nonimmigrant workers, a person whose employment ends has up to 60 days, or until their authorized stay expires if that comes sooner, to take action. The first step is to decide quickly whether another nonimmigrant status fits. Depending on the facts, options may include:
- B-2 visitor, if the person has a genuine temporary purpose and enough funds to support the stay
- E-2, for treaty nationals
- O-1, for individuals with extraordinary ability
- L-1, if there is a qualifying intracompany transferee fit
- P-1, H-1B, or TN (USMCA), through a change of employer or status
Final Thoughts
For now, the 60-day grace period remains available.
However, this proposal is significant for H-1B, O-1, E-2, E-3, L-1, TN and other affected visa holders because the grace period can provide critical time to determine the next immigration step after employment ends.
We will continue to monitor the proposed rule and provide updates if DHS moves forward with a final rule.
If your employment has ended, you are concerned about a possible termination, or you have questions about how the proposed change could affect your immigration status,request an appointment with Keamy Tavares & Associates to discuss your individual circumstances.
This article is provided for general informational purposes only and does not constitute legal advice. Immigration matters are fact-specific, and proposed regulations may change before a final rule is issued.