DHS proposes ending the 60-day grace period for H-1B and other work visas

The Department of Homeland Security on Thursday published a proposed rule that would eliminate the discretionary 60-day grace period for several classes of temporary workers, including H-1B specialty-occupation holders. The draft, signed by Secretary Markwayne Mullin and listed as DHS Docket No. USCIS-2026-0364, would strike 8 CFR 214.1(l)(2).

Under the current regulation, in force since January 2017, a worker whose job ends before the I-94 expires may remain in status for up to 60 consecutive days, or until the I-94 runs out, whichever is shorter. In that window the worker can file a new Form I-129 with another employer, file a Form I-539 to change status, or leave the country. Receipt by USCIS, not a postmark, stops the clock.

The proposed text says workers and their dependents "would be considered to be immediately failing to maintain their nonimmigrant status the day after the principal alien's employment or activity ceases" and would be expected to depart unless they have another lawful basis to stay. DHS estimates about 3,795 workers a year use the grace period, nearly all of them H-1B holders. More than 208,000 spouses and children hold dependent status tied to those workers.

Who else sits in the same paragraph

The deletion would also cover E-1 and E-2 treaty traders and investors, E-3 Australians, H-1B1 Chilean and Singaporean professionals, L-1 intra-company transferees, O-1 extraordinary-ability workers and TN professionals from Canada and Mexico. The 2016 rule treated those classes together because all of them rest on a job or an activity. DHS now wants that link to be immediate again.

Indians received 71 percent of H-1B visas in fiscal 2024, according to the Migration Policy Institute. A layoff at a technology employer in Texas or New Jersey would, under the draft, put the worker and any H-4 family members out of status the next calendar day. Re-entry after a new petition is approved would still be possible. The in-country search that the 60-day window was written to allow would not.

What the rule does not do yet

This is a proposal. It does not take effect on publication. Comments will run for the period set in the Federal Register notice. A final rule can change. Employers who file cap-subject petitions already face a separate proposed fee of $103,265 on new petitions, a file Almanaque has covered. Cognizant's PERM pipeline is under a Labour Department freeze in a fraud probe. The grace-period deletion sits in that same enforcement season.

Severance pay does not extend the current clock. The last day of compensable work starts it. If the draft becomes final, that last day becomes the last day of status. Unlawful presence would begin to accrue immediately unless the person leaves or holds another status. That is the change that immigration lawyers will brief to every H-1B household this month, even while the text is still a proposal.

DHS presents the move as restoring a direct relationship between status and employment. The 2016 grace period was written after a run of technology layoffs left workers with approved petitions and no employer. Thursday's draft treats that cushion as a distortion. The comment file will now show whether employers, universities and the Indian and Canadian governments treat it the same way.