Immigration
US DHS Proposes Elimination of 60-Day Grace Period for Certain Nonimmigrants: What Employers and Foreign Nationals Need to Know
By Buchanan Attorneys Khushbu Patel and Dilip Patel
In a move that could significantly impact the landscape of employment-based immigration in the United States, the Department of Homeland Security (DHS) has proposed a rule to eliminate the 60-day grace period currently afforded to certain nonimmigrants.
While the full details of the proposed regulation are not yet available, the implications are already sparking considerable concern among employers and foreign workers.
Background: The Sixty-Day Grace Period — A Vital Safety Net
Since its formal implementation in 2017, the 60-day grace period has served as a critical safety net for nonimmigrant workers in the U.S. who experience employment termination or other status changes. Before this regulation, there was no official period allowing individuals in valid visa statuses, such as H-1B, L-1, E-2, or TN, to remain legally in the U.S. after employment ended, aside from the expiration of their I-94 record.
The regulation permits these nonimmigrants and their dependents to stay in the U.S. for up to 60 days after employment ends or until their I-94 expires, whichever comes first. During this time, they can:
- Seek new employment
- Apply for a change of employer or change of status
- Prepare to depart the U.S.
- Obtain employment authorization under compelling circumstances.
Importantly, each individual is eligible for only one 60-day grace period per petition validity period, making it a limited but essential window for lawful transition.
The Proposed Change: What’s at Stake?
The DHS proposal, currently in the review phase, aims to eliminate this grace period. If finalized, the rule would mean that nonimmigrants whose employment ends before their petition’s expiration date would no longer be able to stay in the U.S. during that 60-day window. Instead, they would be required to depart immediately unless they have obtained specific USCIS authorization for a change of status or employment.
This change could have far-reaching effects:
- Reduced Flexibility for Foreign Workers: Currently, workers facing job loss have a safety net that allows them time to find new employment or transition smoothly. The elimination of the grace period would force immediate departure, complicating job searches and potentially leading to more unlawful overstays.
- Increased Pressure on Employers: Employers may face challenges in managing employment transitions, especially for foreign nationals on H-1B and other employment-based visas. The sudden departure requirement could disrupt business operations and create compliance risks.
- Impact on Immigration and Labor Markets: The change might deter foreign talent from pursuing employment in the U.S., affecting industries that rely heavily on skilled foreign workers, such as technology, healthcare and academia.
Timeline and Next Steps
The review process is ongoing. The proposal was submitted for review on Aug. 6, 2026. Once the review concludes, DHS will publish the proposed rule in the Federal Register, opening a comment period of 30 to 60 days.
Following the comment period, DHS may decide to withdraw, modify or proceed with the rule. If the rule moves forward, it could take several months to finalize and implement, meaning the current 60-day grace period would remain in effect until that time.
What Should Employers and Foreign Nationals Do Now?
While the proposed rule is still under review, it is wise for employers and foreign workers to prepare for potential changes:
- Stay Informed: Regularly monitor official DHS and USCIS announcements regarding the rule’s progress.
- Review Employment Policies: Employers should review their policies for managing employment terminations and consider strategies to ensure compliance and minimize disruptions.
- Plan for Transition: Foreign nationals should consider alternative plans, such as timely departure, applying for change of status, or exploring other visa options before employment ends.
- Consult Legal Experts: Given the complexity and potential impact, consulting immigration attorneys can help develop strategies to navigate upcoming changes.
Broader Context: A Trend Toward Greater Discretionary Control
This proposed change aligns with broader discussions within U.S. immigration policy circles about increasing DHS and USCIS authority over nonimmigrant employment regulation. The elimination of the grace period undermines the flexibility needed for lawful employment transitions, potentially harming U.S. competitiveness and the ability to attract global talent.
Final Thoughts
The potential elimination of the 60-day grace period represents a significant shift in U.S. immigration policy affecting employment-based nonimmigrants. While the rule is still in the proposal stage, awareness and proactive planning are essential for those impacted.
Employers and foreign nationals should stay vigilant and seek expert legal advice. As always, the evolving landscape emphasizes the importance of staying informed and engaged with official updates and policy developments.Tampa Bay area welcomes Attorney Khushbu Patel
We are pleased to introduce Attorney Khushbu Patel to our readers. Khushbu is an experienced immigration attorney and has recently joined the Buchanan Ingersoll & Rooney law firm to work with Dilip Patel, who writes our immigration articles. Khushbu brings with her a wealth of knowledge in immigration law and a passion for helping individuals and families navigate the complexities of the immigration process.
Khushbu was born and raised in Richmond, Va., where she developed a strong foundation in legal principles and a deep commitment to serving her community. She earned her law degree from a respected institution, Rutgers Law School, where she developed a keen understanding of the challenges faced by immigrants in the United States.
She married in April 2024 and recently moved to the Tampa area with her husband, who works in commercial contracting. Khushbu’s move to Tampa not only marks a new chapter in her personal journey but also allows her to contribute her expertise to the growing community in the region. Fluent in Gujarati, she is an active member of the BAPS Swaminarayan Mandir in Thonotosassa, Florida.
We are thrilled to welcome Khushbu to our readers and look forward to the invaluable information she will provide to them in the field of immigration law.