DHS Proposes Ending the H-1B 60-Day Grace Period After Employment Ends
On September 11, 2026, the U.S. Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would eliminate the discretionary 60-day grace period currently available to certain employment-based nonimmigrants after their employment ends.
The proposal, titled “Eliminating the Discretionary 60-Day Grace Period,” is now open for public comment through November 10, 2026. ARCFE previously reported on the proposal after it completed White House regulatory review in late August.
Importantly, this is still a proposed rule. It has not taken effect, and the current 60-day grace-period regulation remains in place.
How the 60-Day Grace Period Works Today
Under 8 CFR 214.1(l)(2), workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, together with qualifying dependents, may receive a discretionary grace period after the employment or activity supporting the principal worker's status ends.
The period can last for up to 60 consecutive days or until the end of the worker's authorized validity period, whichever comes first, and may be available once during each authorized validity period.
The grace period itself does not provide employment authorization, and DHS may shorten or eliminate it based on the circumstances of an individual case.
For affected workers, however, the period can provide time to coordinate a new employer filing, pursue an eligible change of status, or prepare to leave the United States.
What Would Change Under the Proposed Rule?
DHS is proposing to remove 8 CFR 214.1(l)(2) altogether.
If the rule is finalized in its current form, covered workers and their dependents would no longer have this additional 60-day period after qualifying employment ends. DHS states that they would generally be considered to have failed to maintain their nonimmigrant status beginning the day after the principal worker's employment or qualifying activity ends, unless they are otherwise authorized to lawfully remain in the United States.
Issue | Current Rule | If the Proposal Is Finalized as Written |
Employment ends before approved validity period expires | Up to 60 days, or until validity expires, whichever is shorter | No separate 60-day grace period |
Dependents | May also be covered by the principal's grace period | 60-day protection would also be removed |
Work authorization | Grace period itself does not authorize employment | No additional work authorization created |
Separate post-validity grace period | Certain classifications may have up to 10 days after the approved validity period ends | Separate rule remains, but does not cover employment ending early |
The separate 10-day period applicable to certain classifications should not be confused with the 60-day rule. DHS specifically notes that because the 10-day period applies after the approved validity period ends, it does not protect a worker whose employment ends earlier during that validity period.
What Should H-1B Workers Do Now?
For now, there is no immediate change to the existing 60-day rule. H-1B professionals should not act as though the grace period has already been eliminated.
Still, workers who are facing a possible layoff, considering a job change or dealing with employment uncertainty may want to review their immigration position earlier rather than waiting until employment ends.
That includes checking:
Form I-94 and petition validity dates;
the timing of any prospective new-employer filing;
the status of dependent family members; and
whether another immigration or adjustment-of-status strategy may be available.
Any decision involving a change of employer, change of status, departure from the United States or use of another immigration benefit should be reviewed with qualified immigration counsel based on the individual's circumstances.
For H-1B professionals thinking beyond the next employer transfer, ARCFE's guide, EB-5 for H-1B Professionals: A More Independent Path Worth Reviewing Early, provides a broader comparison of employer-sponsored status and EB-5 planning.
Where EB-5 May Fit Into Long-Term Immigration Planning
The proposed rule highlights an important structural feature of H-1B status: maintaining H-1B status generally depends on qualifying employment with a sponsoring employer.
The EB-5 Immigrant Investor Program is based on a different immigration framework. Eligible investors may pursue permanent residence through a qualifying investment and job creation rather than sponsorship by a particular employer.
EB-5 is not an emergency replacement for H-1B, and it is not the right option for every family. Eligibility, source of funds, investment risk, visa availability and filing strategy all require independent review.
For eligible applicants already in the United States, USCIS permits Form I-485 to be filed concurrently with or after Form I-526E when approval of the I-526E would make an immigrant visa immediately available and the applicant is otherwise eligible to adjust status. Eligible applicants may also request employment authorization and Advance Parole. Filing these applications, however, does not by itself provide an EAD, guarantee Advance Parole or preserve H-1B status.
ARCFE's EB-5 Concurrent Filing: What Investors in the United States Should Know explains the process in greater detail.
To learn more about ARCFE’s experience and investment approach, or to evaluate whether EB-5 may fit your family’s immigration plans, request a confidential consultation with the ARCFE team.
Speak with our EB-5 specialist and learn how the program can help you achieve permanent residency. Complete the form and our team member will give you a call back.
This article is provided for general informational purposes only and does not constitute immigration, legal, tax, or investment advice. Immigration rules and agency policies may change, and individual circumstances can produce different results. Applicants should consult qualified immigration counsel before making employment, travel, or status decisions.
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