Immigration: Proposed Elimination of the 60-Day Grace Period in US: What You Need to Know
For nearly a decade, foreign professionals navigating a sudden layoff or transition have relied on a critical cushion: the discretionary 60-day grace period . Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status in that same classification after the end of employment for up to 60 consecutive calendar days or until the end of the authorized nonimmigrant validity period, whichever is shorter (the “maximum 60-day grace period”). See 8 CFR 214.1(l)(2).
That safety net is now officially on the drafting table.
On September 11, 2026, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking titled "Eliminating the Discretionary 60-Day Grace Period" (RIN 1615-AD22). If finalized as written, this rule would completely strike the 60-day grace period regulation (8 CFR § 214.1(l)(2)) from the books.
Here is a plain-English breakdown of what this proposal means, who is affected, and what options remain if the rule is finalized.
Fast Facts: The DHS Proposal at a Glance
The Proposed Action: DHS plans to entirely remove the discretionary 60-day grace period . If finalized, visa holders would be considered out of status the very day after their qualifying employment ends.
Visas Affected: H-1B, H-1B1, L-1, O-1, TN, E-1, E-2, and E-3.
Dependents Included: Because dependent visas (like H-4 or L-2) are tied directly to the principal worker, spouses and children would also lose status immediately.
Current Status: Nothing has changed yet. This is currently only a proposal. The public comment window is open through November 10, 2026 . The current 60-day grace period remains fully operational and active while the standard administrative process plays out.
The Post-Grace Period Roadmap: What Are the Options?
If the rule does go into effect, the "offboarding playbook" that employers and workers have used since 2017 will vanish . Without the 60-day buffer, individuals facing a job loss will generally be expected to leave the U.S. immediately unless they have another basis to stay.
However, U.S. citizenship and immigration regulations still contain alternative, discretionary remedies. The most notable is asking the government to excuse a late filing.
In technical terms, this is known as seeking a nunc pro tunc (Latin for "now for then") approval under 8 CFR § 214.1(c)(4). If you miss a filing deadline because your status terminated abruptly, a new employer can still file a petition on your behalf and request that USCIS retroactively approve your status.
How "Asking the Government to Excuse a Late Filing" Works
Rather than a standard, guaranteed filing, this is an extraordinary request. To get the government to excuse your late filing, you and your new sponsoring employer must prove four strict criteria:
Extraordinary Circumstances: You must show that the delay was due to extraordinary circumstances beyond your control (such as a sudden lay-off without warning).
No Other Violations: You must have otherwise maintained your status and not violated immigration rules.
Bona Fide Nonimmigrant: You must show that you are still a genuine temporary worker intending to follow the rules.
No Active Removal: You must not currently be in deportation (removal) proceedings.
⚠️ Watch out for: While this provision is not being eliminated by the proposed rule, it is discretionary and granted sparingly. Additionally, DHS estimates that eliminating the grace period may lead to an increase in individuals being placed in removal proceedings, which would automatically disqualify them from utilizing this late-filing excuse. It is a vital option, but it should not be treated as a routine backup plan.
Recommended Actions & Next Steps
Do Not Panic, But Do Plan: Since the rule is not yet final, employers and employees should continue utilizing the 60-day grace period as normal. Do not alter active filings or active sponsorship plans based solely on this draft proposal.
Review Offboarding and Restructuring Timelines: Employers should start examining how workforce adjustments and termination dates are timed. Under a zero-grace-period framework, coordinated transitions will require much tighter windows.
Have Your Voice Heard: The government must review and respond to all substantive public feedback before issuing a final rule . If you want to submit a formal comment regarding how this change would impact your business or career, you can submit feedback on the official Federal eRulemaking Portal under Docket USCIS-2026-0364 before November 10, 2026.
We will continue to track this rulemaking closely. If you are navigating a job transition or planning workforce changes, contact our office to discuss strategic filing options tailored to your situation.