Status as of September 11, 2026. This is a notice of proposed rulemaking, not a final rule. The 60-day grace period at 8 CFR 214.1(l)(2) remains in effect and continues to apply while the rulemaking is pending. Comments are due by November 10, 2026, through regulations.gov under DHS Docket No. USCIS-2026-0364. DHS would have to issue a final rule, with an effective date, before anything changes.
DHS published a proposal on September 11 to delete the regulation that currently lets workers in eight employment-based nonimmigrant categories remain in the United States for up to 60 days after their job ends without being treated as out of status. If finalized, a person in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status — and their dependents — would be considered to have failed to maintain status the day after the qualifying employment stops, and would be expected to depart immediately unless some other basis to remain applies.
What the rule would change
The proposal removes a single paragraph: 8 CFR 214.1(l)(2). That paragraph is what allows a worker whose employment ceases mid-petition to stay for up to 60 days, or until the end of the authorized validity period, whichever is shorter, without a status violation — unless USCIS shortens or eliminates the period as a matter of discretion.
Its removal restores the framework that applied before 2017. Under that framework there was no cushion: the day after the job ended, the person was out of status, became deportable under INA § 237(a)(1)(C)(i), and generally could not file for an extension of stay or a change of status from inside the country.
The categories covered are listed in the regulation itself — E-1, E-2 and E-3 treaty traders, investors and Australian specialty-occupation workers; H-1B and H-1B1; L-1 intracompany transferees; O-1; and TN professionals from Canada and Mexico — together with their dependent spouses and children.
Where the grace period came from
It is not a longstanding feature of immigration law. DHS created it in the AC21 final rule of November 18, 2016 (81 FR 82398), effective January 17, 2017, and the stated purpose at the time was job portability: giving workers who lost a job a window to find a new sponsor, and giving employers an easier way to hire someone already in the country.
DHS now says that reasoning gave too little weight to the statutory design. Its position in the preamble is that lawful status in each of these categories is tied by statute to performing the specific work that was the basis of admission, so a period in which someone holds status while not doing that work is out of step with the statute. DHS states plainly that it is changing its own position, which is the part of the rule most likely to be litigated if it is finalized.
The administrative-burden argument and the numbers behind it
The second justification is workload. DHS counted the filings on which an officer might have had to decide whether the grace period applied — I-129 petitions with extension or change-of-status requests, I-539 applications, employment-based I-485s and compelling-circumstances I-765s — and put the total at more than 1.9 million from the start of fiscal year 2018 through May 20, 2026.
The preamble describes what that assessment involves: officers must establish the exact last day of prior employment, often from payroll records that do not state it, and then decide whether to shorten or eliminate the period based on the totality of circumstances. DHS concludes it should not spend adjudication resources on a discretionary benefit the statute does not require.
What DHS says the rule would cost
The regulatory analysis is unusually candid about who bears the cost. Some workers would be issued Notices to Appear and would incur the expense of attending immigration hearings, which DHS estimates at $204.43 to $300.53 per person in time and travel. A subset of 3,795 beneficiaries a year may lose income if a job search takes longer because it has to happen from abroad. H-1B and O-1 petitioners who dismiss a worker before the end of the authorized admission period would remain liable for the reasonable cost of return transportation.
On the benefit side, the accounting statement lists no monetized benefits at all. The entries are qualitative and accrue to the government: program integrity and reduced administrative burden. OMB designated the rule significant under Executive Order 12866, though not economically significant.
DHS also acknowledges reliance interests — people who bought homes, made career plans, or stayed after a layoff expecting the period to apply — and concludes that any such reliance was misplaced, because the grace period was always discretionary and only assessed later, when a subsequent benefit request was adjudicated.
What the proposal does not touch
Only 214.1(l)(2) is removed. Other grace periods sit in different provisions and are not part of this rulemaking — among them the periods for F-1 students and J-1 exchange visitors, and the 10 days before and after the validity period for O-1 nonimmigrants.
H-1B portability under AC21 is statutory and is not amended here. The practical catch is that portability generally requires the worker to be in a period of authorized stay when the new petition is filed, which is precisely what the grace period supplies today. Compelling-circumstances employment authorization on Form I-765 also remains available to those who qualify.
Alternatives DHS considered and rejected
The preamble walks through three. Removing the period for some categories but not others was rejected as leaving the same statutory mismatch in place. Shortening rather than eliminating it was rejected because officers would still have to run the same analysis. Keeping it but imposing strict evidentiary requirements was rejected for the same reason — adjudicators would still verify employment end dates. Each alternative fails on one or both of the stated goals.
How to comment
Comments must be filed through regulations.gov under DHS Docket No. USCIS-2026-0364 by November 10, 2026, and the electronic docket accepts them until midnight Eastern that day. DHS states that emails or letters to agency officials are not comments on the rule, that hand-delivered and mailed comments are not accepted, and that submissions must be in English or accompanied by an English translation. Everything filed, including personal information, is posted publicly.
Frequently asked questions
Has the 60-day grace period been eliminated?
No. This is a proposed rule published September 11, 2026. The grace period at 8 CFR 214.1(l)(2) remains in effect and continues to apply. It would change only if DHS issues a final rule and that rule takes effect.
Who would be affected if it is finalized?
Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status and their dependents. They would be considered to have failed to maintain status the day after the qualifying employment or activity ends, and would be expected to depart unless otherwise authorized to remain.
Would H-1B portability still work?
Portability is statutory and is not amended by this proposal. However, it generally requires the worker to be in an authorized period of stay when the new petition is filed, and the grace period is what provides that window after a job ends. Removing it would narrow the practical room to use portability after a termination.
Official sources
Resource | What it covers |
|---|---|
Full text of the proposal, the preamble reasoning and the regulatory analysis | |
Where comments are filed and where the comment record and any final rule appear | |
The official electronic format of the published document |
This material is informational, current as of September 11, 2026, and is not legal advice. A proposed rule is not law, and the final version may differ from what was proposed. Decisions that depend on status after a job ends — including travel, filings and timing — should be made with a licensed immigration attorney.