DHS Seeks to Eliminate 60-Day Grace Period for Certain Nonimmigrant Workers

The Department of Homeland Security (DHS) has proposed a rule to eliminate the current 60-day grace period available to certain temporary workers and their dependents at the end of employment. The proposal would affect workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, as well as their dependents. Under current regulations, eligible workers receive a 60-day grace period when their employment ends, or until their I-94 record expires, whichever comes first, to look for a new employer, change status, or make arrangements to depart the United States.

DHS argues that the current 60-day grace period does not align with the statutory frameworks for temporary worker classifications and causes an administrative burden on USCIS. DHS also states that the current process of assessing whether a grace period is warranted is time-consuming and complex for the agency due to a lack of uniformity in submitted evidence and the discretionary power of the officers reviewing the petitions.

If the proposed rule takes effect, individuals whose employment ends before their petition expiration date may be required to depart the U.S. unless they have another lawful basis to remain. DHS acknowledges that the consequences of this change may leave affected workers less time to pursue other immigration options or arrange their proper departure from the U.S.

The current 60-day grace period remains in effect while the proposed rule goes through the required rule-making process. The agency is accepting comments from the public about the proposed rule until November 10, 2026 (you can submit a comment here). The agency has already received 23,443 comments. Once the comment period closes, DHS will review the comments and issue a final rule. If DHS ultimately implements the proposed rule, it will significantly reduce flexibility for affected nonimmigrant employees, their dependents (many of whom are in school or who work), and employers who want to scoop up that talent.

This alert is for informational purposes only. Please contact us if you would like to discuss these developments further.