H-1B 60-Day Grace Period Proposal Clears White House Review
- ARCFE U.S.
- 2 days ago
- 4 min read
On August 27, 2026, a Department of Homeland Security proposal to eliminate the discretionary 60-day grace period for certain employment-based nonimmigrants completed review at the White House Office of Information and Regulatory Affairs.
The official OIRA record still classifies the measure, RIN 1615-AD22, as a proposed rule and lists no publication date. As Bloomberg Law reported, completing White House review suggests that the proposal may soon be released publicly.
The distinction is important: the proposal has not taken effect, and the current grace-period regulation remains in place.
What the H-1B 60-Day Grace Period Proposal Could Change
Under the current federal regulation, eligible workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status—and their dependents—may receive a discretionary grace period after the principal worker’s employment ends.
The maximum period is 60 consecutive days or until the end of the worker’s authorized validity period, whichever comes first. It may be available once during each authorized validity period, but DHS can shorten or decline it. The grace period itself does not provide employment authorization.
Affected workers may use this time to pursue a qualifying change of employer, apply to change status or prepare to leave the United States.
If the provision is ultimately removed, workers may have substantially less time to take these steps after employment ends. However, the exact scope, transition rules and effective date will not be known until DHS publishes the proposed text and completes the rulemaking process.
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.
Who May Be Most Affected?
H-1B workers facing a layoff or changing jobs before a new petition is filed
Under the H-1B portability rules, an eligible worker may generally begin new employment after the prospective employer properly files a nonfrivolous H-1B petition. If the grace period is eliminated, coordinating the final day with the current employer and the filing by the new employer may become even more important.
Professionals with an approved Form I-140 who have not filed Form I-485
Approval of Form I-140 is an important step in an employment-based Green Card case, but it does not independently provide lawful immigration status or employment authorization.
Until an applicant is eligible to file Form I-485, maintaining valid H-1B or another lawful status generally remains necessary. This issue is particularly relevant to many India-born professionals whose employment-based cases remain subject to lengthy visa backlogs under the monthly Visa Bulletin.
H-4 spouses and children
The current grace-period regulation also covers qualifying dependents. If that protection is ultimately removed, a change in the principal worker’s employment may require the entire family to review its immigration arrangements at the same time.
F-1 students, including those working through OPT, are not directly covered by this particular 60-day regulation. They remain subject to separate F-1 and OPT requirements. The proposal becomes directly relevant after a student changes to H-1B or another covered employment-based status.
Workers facing a possible layoff or job change should review their I-94 expiration date, petition validity period and dependent family members’ status before employment ends. Any transfer, change-of-status or travel decision should be reviewed with qualified immigration counsel.
Where EB-5 May Fit Into Long-Term Planning
The proposal highlights a structural feature of H-1B status: the worker’s ability to remain employed in the United States is closely connected to a sponsoring employer.
For families with qualifying capital and established long-term plans in the United States, the EB-5 Immigrant Investor Program may offer a separate path to permanent residence that does not require employer sponsorship or participation in the H-1B selection process.
EB-5 should not be treated as an emergency response to a layoff, and it is not suitable for every family. Investors must meet the program’s investment, lawful-source-of-funds and job-creation requirements, and EB-5 capital must remain at risk.
For eligible applicants already in the United States, USCIS permits concurrent filing of Form I-526E and Form I-485 when an immigrant visa is immediately available and the applicant otherwise qualifies to adjust status. Eligible applicants may also submit Form I-765 for an Employment Authorization Document and Form I-131 for Advance Parole.
Filing these applications does not itself provide employment or travel authorization, preserve H-1B status or guarantee approval. ARCFE’s EB-5 concurrent filing guide explains these distinctions in greater detail.
Visa availability must also be reviewed by category and country of chargeability. As of the September 2026 Visa Bulletin, India’s unreserved EB-5 category is Unavailable under the Final Action Dates chart, while the rural, high-unemployment and infrastructure set-aside categories remain Current. These dates can change monthly and must be confirmed with the applicable USCIS filing chart before filing.
ARCFE was founded by iCross Capital, a New York City real estate financing institution with nearly 20 years of lending experience. ARCFE supports qualified investors through project review, investment structuring and ongoing investor communication. Immigration counsel must independently determine each applicant’s eligibility, visa availability and filing strategy.
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.
Related ARCFE Resources
