For many foreign professionals, losing a job means more than just a career obstacle—it presents an immediate immigration problem.
Under current regulations, workers in several employment-based nonimmigrant classifications may receive a discretionary grace period of up to 60 days after the employment or activity underlying their status ends. That interval can provide crucial time to find another employer, file an appropriate petition or application, or prepare to leave the United States.
The Department of Homeland Security now proposes to eliminate that protection.
Under a proposed rule published on September 11, 2026, workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status—and their dependent family members—would no longer receive the regulatory grace period after qualifying employment or activity ends.
The proposal is not yet effective. The existing 60-day provision remains in place while DHS conducts the rulemaking process, and written comments may be submitted through November 10, 2026.
If finalized, however, the change would substantially reduce the time available to respond to a layoff, resignation, business closure, or other termination of employment. It would also make advance coordination among foreign workers, employers, human resources personnel, and immigration counsel considerably more important.
What does the current 60-day grace period provide?
Under 8 C.F.R. § 214.1(l)(2), qualifying nonimmigrants may be considered to have maintained status for up to 60 consecutive days after the employment or activity underlying their status ends—or until the end of their authorized validity period, whichever is shorter.
The provision applies to principal nonimmigrants in the following classifications:
- E-1 treaty traders;
- E-2 treaty investors and qualifying employees;
- E-3 Australian specialty occupation professionals;
- H-1B specialty occupation workers;
- H-1B1 professionals from Chile and Singapore;
- L-1 intracompany transferees;
- O-1 individuals of extraordinary ability; and
- TN professionals from Canada and Mexico.
It also applies to dependent spouses and children whose status is tied to the principal worker.
The grace period is discretionary rather than automatic. DHS may shorten or eliminate it based on the circumstances. Nevertheless, it ordinarily gives a worker a limited interval in which to pursue another lawful immigration option.
The grace period does not, by itself, authorize continued employment. Its principal function is to prevent an immediate failure to maintain status while the worker takes an appropriate next step.
What would the proposed rule change?
DHS proposes to remove 8 C.F.R. § 214.1(l)(2) from the regulations.
If the proposal becomes final as written, a covered worker whose employment ends before the expiration of the approved petition or admission period generally would no longer have a routine regulatory period in which he or she is treated as continuing to maintain status.
DHS states that the worker and dependent family members would be expected to depart the United States immediately unless they have another legal basis to remain.
The proposal would not eliminate every possible means of remaining in the United States after employment ends. A worker might qualify for a petition by another employer, a change to another status, adjustment of status, or another independently available form of relief.
The critical difference is that the worker could no longer rely on a predictable period of up to 60 days in which to arrange that alternative.
Has the grace period already been eliminated?
No.
The September 11 publication is a proposed rule, not a final rule. The present regulation remains in effect unless and until DHS publishes a final rule with an effective date.
DHS must first review the public comments. It may adopt the proposal as written, modify it, delay it, or withdraw it. Any final rule could also become the subject of litigation.
Workers who presently experience a qualifying cessation of employment may therefore continue to request the benefit of the existing grace-period regulation, subject to DHS discretion and the expiration date of their authorized stay.
Would a worker have to leave immediately after losing a job?
Under the proposed rule, DHS’s stated expectation is that covered workers and their dependents would depart when the underlying employment or activity ends unless they are otherwise authorized to remain.
Failure to maintain nonimmigrant status is not necessarily identical to accruing unlawful presence. Those concepts are governed by different legal rules and may depend on an individual’s Form I-94, subsequent filings, and other circumstances.
That distinction should not be treated as permission to remain without a plan. A status violation can prevent approval of an extension or change of status, create obstacles in adjustment of status proceedings, and adversely affect future discretionary immigration benefits.
The safe response would depend on one’s classification, immigration history, pending applications, authorized period of stay, and available alternatives.
Could another employer still sponsor the worker?
Potentially, but the proposed policy would make the timing much more difficult.
Under the present rule, a new employer frequently can prepare and file a petition during the grace period. In a qualifying H-1B case, the portability statute may permit the worker to begin employment after USCIS receives a properly filed petition from the new employer.
Eliminating the grace period would not repeal H-1B portability. It could nevertheless impair a worker’s ability to use it after employment has ended because the new petition may need to establish that the beneficiary remained eligible for an extension of stay through the filing date.
Similar problems would arise in other classifications:
- An O-1 professional ordinarily needs an appropriate new or amended petition before working through a new employer or agent.
- An L-1 employee usually cannot move to an unrelated employer while remaining in L-1 status.
- E-1 and E-2 classifications depend on qualifying trade, investment, nationality, ownership, and employment relationships.
- E-3, H-1B1, and TN workers must satisfy their respective classification and employment requirements.
Recruiting, interviewing, negotiating an offer, obtaining internal approvals, securing a certified Labor Condition Application when required, and preparing a petition rarely can be completed on such short notice.
If the proposed rule becomes final, the most secure strategy may be to have the new filing completed before the existing employment ends.
Would USCIS still have authority to excuse a late filing?
Existing regulations permit USCIS to excuse certain untimely extension of stay or change of status filings when the delay resulted from extraordinary circumstances beyond the applicant’s or petitioner’s control and the other regulatory requirements are satisfied.
That authority is narrow and discretionary. It is not a substitute for a generally available grace period and should not be treated as a dependable solution to ordinary layoffs, hiring delays, or unsuccessful job searches.
A petition filed after employment ends might still be approved for consular processing while the requested extension of status is denied. The worker would then need to depart the United States and apply for a visa abroad before beginning or resuming employment.
Does the proposal account for layoffs and ordinary hiring timelines?
Only to a limited extent.
The existing grace period does not distinguish between voluntarily and involuntary termination of employment. The proposed rule would likewise eliminate it without distinguishing why employment ended. The consequences could be especially severe when:
- An employer conducts a reduction in force;
- The worker receives little or no advance notice;
- A new employer requires multiple interviews or internal approvals;
- A petition requires extensive supporting documentation;
- A Labor Condition Application must be obtained;
- A spouse’s work authorization depends on the principal worker’s status;
- Children are enrolled in school;
- The family owns or leases a home; or
- The worker is pursuing a lengthy employment-based green-card process.
The proposal effectively would shift much of the immigration risk associated with an unexpected termination to the worker, the worker’s family, and any prospective new employer.
What would the change mean for employers?
The proposal would affect more than workers who lose their jobs.
An employer seeking to recruit a foreign worker from another company may need to complete its immigration planning long before the employee resigns. A start date contingent on a future petition filing could become much harder to manage if the worker leaves the former position too soon.
Employers planning layoffs also may need to coordinate their human resources and immigration decisions. Advance notice could determine whether a foreign employee has enough time to obtain another offer and whether the new employer can file before the existing employment ends.
Accurately identifying the last day of qualifying employment would become especially important. The last day of work, payroll continuation, accrued leave, severance payments, and the formal termination date may not always be the same.
Employers should also remember that immigration obligations differ by classification. An H-1B employer, for example, may have obligations concerning return transportation and withdrawal of the approved petition. Terminations involving sponsored workers should therefore be reviewed individually rather than treated solely as payroll matters.
How would dependent family members be affected?
The proposal would affect the worker’s family as well as the principal nonimmigrant.
A spouse or child in dependent status generally relies on the principal worker’s continuing status. If the principal worker loses status when employment ends, the dependent family members may face the same problem.
The consequences could affect:
- A spouse working under dependent employment authorization;
- Children attending school;
- Pending applications to extend or change status;
- Family travel plans;
- Housing commitments; and
- The family’s ability to remain together in the United States.
DHS acknowledges these effects but states that it lacks sufficiently precise information to determine how many dependents presently benefit from the grace period.
What should workers and employers do now?
The current grace period regulation remains in effect. Foreign workers should not assume that they have lost the existing protection merely because DHS published a proposal.
Nevertheless, workers facing a known contract end, anticipated restructuring, possible layoff, voluntary departure, or unstable employment situation should seek individualized advice early. Depending on the facts, possible strategies may include:
- A petition filed by a new employer;
- A change to another employment-based classification;
- A change to an independently available non-employment status;
- An adjustment of status filing when eligible;
- Employment authorization based on compelling circumstances in the limited cases meeting the regulatory requirements;
- Consular processing after departure; or
- An orderly departure designed to preserve future immigration options.
Not every filing authorizes employment, preserves status, or guarantees that USCIS will approve an extension or change of status.
Employers should likewise review immigration implications before finalizing a termination date and should begin immigration preparation early when recruiting a sponsored worker from another company.
Can employers and workers comment on the proposal?
Yes. Comments must be submitted through Regulations.gov by November 10, 2026, under DHS Docket No. USCIS-2026-0364. Useful comments could address:
- The actual time required to recruit and onboard a sponsored worker;
- The effects of layoffs and short-notice terminations;
- The time required to prepare a petition or obtain a certified Labor Condition Application;
- Consequences for spouses, children, housing, and education;
- Effects on small businesses, healthcare providers, universities, and startups;
- Whether clearer documentation rules could reduce administrative burdens without eliminating the grace period;
- Whether a shorter or nondiscretionary period would provide a workable alternative; and
- The effect on employee mobility and employers’ ability to recruit needed professionals.
Comments are generally more useful when supported by concrete experiences, costs, timelines, workforce data, and other documentation.
Frequently Asked Questions
Has DHS already eliminated the 60-day grace period?
No. The present regulation remains in effect unless and until DHS publishes a final rule with a future effective date.
Does the current grace period authorize employment?
Generally, no. It may allow the worker and dependents to be treated as maintaining status temporarily, but it does not by itself authorize continued work after the qualifying employment ends.
Would the proposal apply only to H-1B workers?
No. It would cover E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrants and their dependents.
Would it apply when an employee resigns voluntarily?
Yes. The proposal does not preserve the grace period based on whether the termination is voluntary or involuntary.
Would losing status automatically result in immediate removal?
No automatic removal order would arise simply because employment ended. Nevertheless, failure to maintain status can have serious immigration consequences, and DHS states that the worker and dependents would be expected to depart unless otherwise authorized to remain.
Could a new employer still sponsor the worker?
Potentially. Without the grace period, however, a filing made after the former employment ends may not support an extension or change of status inside the United States. The result would depend on the classification, timing, and individual facts.
Planning for a Much Smaller Margin of Error
The 60-day grace period has never guaranteed that a foreign professional will find another employer or successfully obtain a new status. It does, however, provide a limited and important interval in which workers, families, and employers can respond to an unexpected change.
DHS now proposes eliminating that interval. If the proposal becomes final, advance planning will become essential, and even a short gap between jobs could create significant immigration complications.
Buda Law Group assists employers and foreign professionals with H-1B, L-1, O-1, E, TN, and other employment-based classifications, including job changes, termination planning, maintenance of status questions, and alternative immigration strategies. Employers or workers concerned about a possible employment transition should seek advice before the employment relationship ends whenever possible.
This article provides general information and does not constitute legal advice. The DHS rule discussed above is a proposal and is not currently in effect. Its language, effective date, and legal status may change through rulemaking, litigation, or further government action. The immigration consequences of employment termination depend on the individual’s classification, Form I-94, petition history, pending applications, family circumstances, and other facts. Consultation with qualified immigration counsel is recommended.