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The comment window on the plan to abolish the H-1B grace period closes Nov. 10. The proposal’s own analysis shows DHS is betting the change on administrative burden, a choice that will shape both the final rule and any court fight over it.
The H-1B grace period, the cushion of up to 60 days that lets a laid-off worker stay in the United States while looking for a new sponsor, moves a step closer to elimination as the public comment period on the Department of Homeland Security’s proposal to repeal it closes on Tuesday, Nov. 10. The rule would reach workers and their dependents in eight classifications, E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN, and would require them to leave the country on the day their employment ends unless they are otherwise authorized to stay. Once the docket closes, the next public step is a final rule, and the proposal sets no date for when that rule would take effect.
The timing matters because comments are the only part of the process the public controls. After today, DHS and U.S. Citizenship and Immigration Services must answer the significant arguments in the record before a final version goes to the White House for review, as the proposal did when it reached the Office of Information and Regulatory Affairs on Aug. 6, Bloomberg Government reported. That review will now run through a White House led by Stephen Miller, who started work as chief of staff on Monday, according to The Washington Post.
What the H-1B grace period repeal changes on day one
The grace period is a single provision, 8 CFR 214.1(l)(2), added in a rule that took effect in January 2017. It lets a worker whose job ends early stay in status for up to 60 days, or until the authorized stay ends if sooner, long enough for a new employer to file a petition or for the worker to seek another status. The proposal deletes it outright.
Nothing replaces it. The separate 10-day period in 8 CFR 214.1(l)(1) applies only after a validity period ends, the proposal notes, so it would not cover a worker who stops working partway through. DHS says affected workers could seek readmission after finding a new qualifying job, which in practice means a new petition and, for most, a visa appointment abroad. The practical effect is that a layoff on a Friday would leave a worker out of status that same Friday, with any rescue resting on USCIS’s existing discretion to excuse a late extension or change-of-status filing in extraordinary circumstances.
A rule justified by workload, not misuse
The most telling part of the proposal is its reasoning. DHS argues that the grace period “disconnects the alien’s lawful status from the very basis of eligibility” and that repealing it would “reduce the administrative burden on USCIS.” It backs the burden claim with a count: from Oct. 1, 2017, through May 20, 2026, more than 1.9 million petitions and applications potentially required USCIS to assess whether a grace period applied, according to the agency’s own figures in the rule.
DHS also explains why it rejected softer options. It considered shortening the grace period and considered eliminating it for only some classifications, and turned down both because neither would reduce the review burden. On reliance, it is blunt: because the 60 days were always discretionary, the rule says, “any reliance on the existing up to 60-day discretionary grace period would be misplaced.” The agency concedes that some people may be issued Notices to Appear and that referrals to the immigration courts would rise “marginally.”
That framing is likely to be the center of any legal challenge. Under the Administrative Procedure Act, and the Supreme Court’s 2020 decision in DHS v. Regents on DACA, an agency changing course must weigh the reliance interests of the people affected and consider less drastic alternatives. DHS has written its answer into the record in advance. The open question is whether a court would accept administrative workload as enough to justify removing a protection across eight visa categories.
Where employers and workers stand after Nov. 10
Until a final rule takes effect, the current regulation stands, and anyone laid off today still has the grace period. Opponents in the technology industry have argued the repeal would be costly, as earlier coverage of one tech group’s cost estimate detailed, while the department maintains the change would “better align the regulations with the statutory basis” for each status.
The issue the final rule will most need to settle is transition. The proposal’s DATES section gives only the comment deadline, so it is not yet clear whether workers already counting down a grace period on the effective date would keep it. The repeal also lands alongside a separate DHS proposal to end deference to prior approvals on H-1B extensions, part of a cluster of work-visa rules whose comment periods close this week. Workers weighing severance can review the 60-day clock in a buyout and the options if the grace period disappears.
This article is for general information and is not legal advice.
Sources
- DHS and USCIS, “Eliminating the Discretionary 60-Day Grace Period,” proposed rule, 91 Fed. Reg. 57807 (Sept. 11, 2026), Docket USCIS-2026-0364
- 8 CFR 214.1, Electronic Code of Federal Regulations
- Bloomberg Government, “H-1B Workers Would Lose 60-Day Job Loss Grace Period in DHS Plan” (Aug. 7, 2026)
- The Washington Post, “Stephen Miller starts job as chief of staff” (Nov. 9, 2026)
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