The Department of Homeland Security has just published a proposed regulation that would eliminate the up-to-60-day discretionary grace period currently available to workers in H-1B, H-1B1, L-1, O-1, TN, and E-1/E-2/E-3 status after their employment ends. This is not yet the law. It is a proposal — a Notice of Proposed Rulemaking — and it now enters a 60-day public comment window. Based on the timeline, DHS could move to finalize this rule as early as January or February 2027.
That window is exactly why this article exists. This is the moment to act, not the moment to wait and see. I’ll walk through what the rule would do, why the 60-day grace period existed in the first place, how DHS’s own reasoning today contradicts its reasoning less than a decade ago, the political backdrop driving this, and — most importantly — what your practical options would look like if this becomes final. I’ll close with specific guidance on what an effective comment looks like.
Why is this grace period not a technicality — it’s a lifeline?
If you’ve never been laid off on a visa, it’s easy to underestimate what 60 days actually buys a person. It is not a grace period in some abstract bureaucratic sense. It is the difference between an orderly transition and a forced, immediate uprooting of a family’s entire life.
Think about what a real termination looks like for someone in H-1B, L-1, O-1, TN, or E-3 status. You likely have:
- A spouse, possibly also working on an H-4 or L-2 EAD.
- Children enrolled in a local school, mid-semester, with friends and routines.
- A home you may have purchased, with a mortgage.
- A car loan, a lease, utilities, memberships — the accumulated infrastructure of a settled life.
None of that can be unwound in a day. And the honest truth is that even a highly motivated worker who lands a new job offer immediately still cannot start working immediately. A new employer has to file a Labor Condition Application with the Department of Labor, which by itself typically takes about a week to certify. Then comes the H-1B petition itself, background documentation, internal legal review, and onboarding — a process that, even when everything goes smoothly, takes a minimum of a month from offer to authorized start date. So even a worker who finds a new job within the first 30 days after termination is still likely to need the additional weeks that only the grace period currently provides. Without it, the math simply doesn’t work for most people.
Where the 60-day grace period came from — and why DHS created it?
The 60-day grace period isn’t ancient history. It was created in the 2016 “AC21” final rule (Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398), effective January 17, 2017. Before that rule, there was no grace period at all — a worker whose employment ended was generally expected to have already violated status the moment employment stopped.
DHS’s own words in 2016 explain exactly why it decided that approach was a problem. It said the grace period would let high-skilled workers whose employment ended before their petition validity period expired more easily pursue new employment — whether with a new employer or in a new but related nonimmigrant category — and would let U.S. employers more easily manage employment transitions for existing and newly recruited workers. In short: DHS itself concluded that abrupt, zero-notice status termination was bad policy, created instability for high-skilled workers, and made it harder for U.S. businesses to manage their own workforce transitions.
Fast-forward to 2026: the same agency, the opposite conclusion
Here is what should trouble every reader: DHS is not claiming the facts changed. In its new proposal, DHS openly acknowledges that the 2016 rule “heavily emphasized the benefit to certain high-skilled immigrants and their U.S. employers.” It doesn’t argue that this benefit disappeared or that the underlying hardship of a sudden job loss stopped being real. Instead, DHS now says two things:
- A legal-alignment argument — that the grace period “disconnects” a worker’s status from the specific job that qualified them for it, and that requiring immediate departure “better aligns” the regulation with the underlying statute.
- An administrative-burden argument — that determining whether, and for how long, to apply the discretionary grace period is “time consuming and complex” for USCIS officers, who must verify termination dates, evaluate discretionary factors, and review inconsistent documentation like payroll records.
Both of these things were just as true in 2016 as they are today. The statutory language tying status to specific employment hasn’t changed. The administrative complexity of verifying a termination date hasn’t changed. What has changed is which administration is in the White House and its stated appetite for a “restrictionist” posture on legal immigration. DHS all but says as much itself, acknowledging in the text of the proposal that it is “changing position” and that it has weighed the “reliance interests” built up by workers and employers over the last decade — and simply decided those interests are outweighed by its new preferred outcome.
That is worth sitting with. A new administration inheriting an agency does not get to rewrite the underlying facts. The families this grace period protects still have children in school. The hiring process at U.S. companies still takes weeks, not hours. None of the operational reality that justified the 2016 rule has disappeared — only the political will to keep protecting workers from it.
The political backdrop: immigration as the 2026 midterm playbook
It’s not a coincidence that this proposal is landing now, alongside a separate DHS proposal to impose a new $103,265 fee on every new cap-subject H-1B petition (on top of all existing filing costs) starting with the FY2028 cap season. Both measures fit a consistent pattern: the administration has treated a hard line on immigration — including legal, skilled immigration — as a core part of its political identity and its theory of how it wins elections. The White House has repeatedly credited its immigration posture as central to its electoral success, and with a midterm election on the horizon, there is every incentive to keep pushing measures that play well with that base.
There’s also a blunt political-math reality worth naming plainly: H-1B and other nonimmigrant visa holders cannot vote. They have no direct electoral leverage to push back with. And support for these workers is thinner than many assume even within immigrant communities — plenty of green card holders and naturalized citizens, including many of South Asian origin who were once H-1B holders themselves, have grown skeptical of the program, believing it now competes with them or their children for jobs. That means opposition to policies like this one doesn’t come only from immigration restrictionists — it comes from a broader and more politically diverse coalition than H-1B advocates sometimes acknowledge. All of this makes it more likely, not less, that this rule and the new fee proposal both move forward largely as written.
This is exactly why individual public comments matter. Comment volume and substance are part of the administrative record that a court can later examine if this rule is challenged. A wave of comments explaining concrete, personal hardship — family disruption, job-search timelines, housing and school situations — is a legitimate and important part of the process, and it costs you nothing but a few minutes.
How to comment effectively?
- Submit through the Federal eRulemaking Portal at regulations.gov, referencing DHS Docket No. USCIS-2026-0364.
- Reference a specific part of the proposed rule rather than writing only in generalities.
- Explain the real-world timeline problem: LCA processing, H-1B filing and onboarding lead times, and why even a fast job search doesn’t produce a fast legal start date.
- If it applies to you, describe concrete personal stakes — children in school, a home, a spouse’s status or employment, community ties — since DHS is required to weigh reliance interests like these.
- Keep it factual, specific, and respectful. Comments with data, personal specifics, or legal analysis carry more weight than form-letter language.
If this becomes law: what your options would actually look like?
It’s worth saying plainly: this situation is not entirely new. Before 2017, there was no grace period, and immigration practitioners and beneficiaries navigated terminations without one for years. It will be tighter and less forgiving than what we’ve grown used to over the last decade, but it is not unprecedented. What changes is that urgency becomes absolute — there is no day to waste, and your options depend heavily on how your termination actually plays out.
Scenario 1: the “garden leave” termination
Many large employers keep a terminated H-1B worker on payroll, and their H-1B status technically active, for one or two months after the practical end of their job — often as part of a severance or transition arrangement. Right now, that period stacks on top of the 60-day grace period, giving affected workers a substantial runway. If the grace period disappears, workers in this situation would be left with only the payroll continuation period itself — no additional cushion once payroll formally ends.
Scenario 2: standard notice termination
If an employer gives you two weeks’ notice, that’s your entire runway to find a new sponsor and get an H-1B transfer filed before your notice period ends. Two weeks is an extremely tight window for a full H-1B transfer petition, but it is workable if you move immediately — which is exactly why time-sensitive planning the moment notice is given, not after the last day, becomes critical.
Scenario 3: no notice at all
This is the hardest case. Without any grace period, a worker terminated without warning would need to act the same day — most realistically by filing online for a change of status to B-2 visitor status, or to H-4 status if a spouse’s status supports it. A B-2 filing should remain on the table even in the other scenarios above, as a fallback if a job search or transfer doesn’t pan out in time.
In practice, even during the years before 2017 when there was no formal grace period, experienced practitioners generally advised clients to file for a change of status to B-2 by around day 45 after job loss, simply to build in a safety margin before running out of runway entirely. And historically, USCIS did sometimes exercise discretion to excuse short filing delays — often in the range of seven to ten days — attributable to the genuinely complex, multi-step nature of the hiring and filing process, when that argument was made clearly and with supporting evidence. Hardship arguments citing the disruption to a family that owns a home or has children enrolled in school can also be part of that case.
One caveat is worth flagging here, since it cuts against relying too heavily on this kind of discretionary relief going forward: DHS’s own 2026 proposal cites the difficulty of administering case-by-case discretionary decisions as one of its stated reasons for wanting to eliminate the grace period altogether, arguing that evaluating discretionary factors and verifying inconsistent termination evidence is time-consuming and unpredictable for its officers. In other words, the same agency that historically extended discretion to workers in tight spots is now arguing that this discretionary decision-making is itself part of the problem — which suggests DHS may be less inclined, not more, to extend similar flexibility informally once the formal grace period is gone.
One more factor makes today’s environment tougher than the pre-2017 era: H-1B visa stamping appointments are currently scarce to the point of being nearly unobtainable in India. That means if an extension or transfer isn’t approved because of even a modest, explainable filing delay, a worker who has to leave the country may have no realistic way back in the near term. That raises the stakes on getting any transfer or change-of-status filing in as early as humanly possible.
The F-1 option
If you get even a modest notice period, switching to F-1 student status remains a real possibility — but it takes real lead time. You would need to apply to and be accepted by a school, receive a SEVIS Form I-20, and then file the change of status petition. The good news is that premium processing is available for change-of-status filings, with adjudication promised within 30 business days. The catch is timing: established universities often have firm application and enrollment deadlines, but there are schools with far more flexible start dates and I-20 issuance timelines that are worth knowing about in advance rather than discovering under pressure.
The return-ticket benefit
When an H-1B worker is terminated, federal regulation already requires the employer to offer to pay for the worker’s transportation home. Many workers understandably decide not to take that offer immediately if they’re actively pursuing a transfer or change of status — but it’s a benefit you’re entitled to, and worth keeping in mind as one option among several rather than a default you have to accept right away.
The bottom line
If this rule is finalized, it will unquestionably make life harder for H-1B and other nonimmigrant workers facing an unexpected job loss. There’s no sugar-coating that. But it is a return to a landscape that immigration practitioners and beneficiaries successfully navigated for years before 2017 — not an entirely uncharted one. With early planning, a clear-eyed understanding of your specific termination scenario, and the right legal guidance the moment your job situation changes, this is a challenge that can be managed. The single most important thing you can do right now, though, is not wait until the rule is final to start paying attention — submit a comment, and start thinking today about what your own contingency plan would look like.
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