The 60-day grace period for H-1B and other workers, and the proposal to end it

Today, 8 CFR 214.1(l)(2) says a worker in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status, and their dependents, is not considered to have failed to maintain status solely because employment ended, for up to 60 consecutive days or until the validity period ends, whichever is shorter, once per validity period, and DHS may shorten or eliminate it. On 11 September 2026 DHS PROPOSED removing that paragraph (91 FR 57807). Comments are due 10 November 2026; the proposal is not in force.

Many searches in 2026 for "H-1B grace period" are really one question: what happens to a worker's status when a job ends? The answer has been written into a single paragraph of the regulations since 2017, and on 11 September 2026 the Department of Homeland Security proposed to delete it. The Federal Register notice is "Eliminating the Discretionary 60-Day Grace Period", 91 FR 57807, docket USCIS-2026-0364.

The proposal is not in force. Public comments are due by 10 November 2026. Until a final rule is published and takes effect, the paragraph in the eCFR as at 1 October 2026 is the rule, and this page quotes it.

This guide sets out four things: what the current rule says and how it works, what the proposal would change, the reasons DHS gives and the consequences it describes, and what the proposal would leave alone. It reports the documents. It does not say what any worker should do, and what status a particular person is in on a particular date is a question for an immigration attorney or a DOJ-accredited representative, who needs the dates.

What the rule says today: 8 CFR 214.1(l)

The grace-period provisions are in 8 CFR 214.1(l), headed "Period of stay". There are three paragraphs.

Paragraph (l)(1): up to 10 days either side of the validity period. A worker admissible in E-1, E-2, E-3, H-1B, L-1 or TN classification "and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period."

Paragraph (l)(2): the 60-day period. This is the paragraph DHS proposes to remove. In full: "An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period."

Paragraph (l)(3): extensions and changes of status. "An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible."

How the 60-day paragraph works, taking the text step by step:

Which classifications. E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN. Students and exchange visitors are not in this paragraph; their grace periods are in other regulations. Our page on the F-1 grace period covers the F-1 rule.
How long. Up to 60 consecutive days, or until the end of the authorized validity period "whichever is shorter". A worker whose job ends with six months left on the petition validity gets the 60 days. A worker whose job ends with 20 days of validity left gets 20.
How often. "once during each authorized validity period".
Discretion. DHS "may eliminate or shorten" it. It is not an entitlement. The 2016 rule that created it said, in DHS's words quoted in the proposal, that such adjudications "require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary's activities after such cessation."
Work. The worker "may not work during such a period" unless another rule authorises it.
Dependents. The paragraph covers dependents too. The proposal's footnote explains that during the principal's grace period the dependents may be considered to have maintained status.

What DHS proposed on 11 September 2026

The notice (91 FR 57807) is a proposed rule. Its summary says DHS "proposes to remove regulations at 8 CFR 214.1(l)(2) to restore its previous and long-standing policy of not providing aliens in certain nonimmigrant classifications (and their dependents) with an up to 60-day grace period upon cessation of employment prior to the expiration of the alien's authorized period of stay." Written comments are due "on or before November 10, 2026" through regulations.gov under docket USCIS-2026-0364.

The proposed regulatory text makes two changes:

In 8 CFR 214.1: "removing paragraph (l)(2) and redesignating paragraph (l)(3) as paragraph (l)(2)." The redesignated paragraph would read: "An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible."
In 8 CFR 204.5(p)(1)(i), a technical change. That paragraph covers employment authorization in compelling circumstances for certain principal beneficiaries of approved employment-based immigrant petitions. It now refers to "the periods authorized by" 214.1(l)(1) and (2); the proposal removes the reference to paragraph (2).

The classifications named in the notice are "E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN". The proposal does not contain a start date or a transition rule for workers already inside a grace period; a final rule, if there is one, would carry its own effective date.

Status as at 10 October 2026. PROPOSED. The comment period is open until 10 November 2026. No final rule has been published, and the 60-day paragraph remains in the eCFR.

Why DHS says it wants to remove it

DHS gives two reasons: the statutory link between status and the job, and administrative burden.

Status tied to the job. The notice says: "By statute, an alien's lawful status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN nonimmigrant classification is directly connected to and contingent upon the alien conducting certain employment activities or otherwise providing services in the United States that is generally tied to a petitioning employer." Removing the grace period would, in DHS's words, require "an alien to depart from the United States immediately upon his or her failure to maintain the employment or activity that was the basis for the nonimmigrant classification or status (unless otherwise authorized to lawfully remain in the United States)."

Administrative burden. DHS says the grace period "increases administrative burden on USCIS by adding complexity to the documentation and adjudication process". It explains that officers adjudicating a later extension must work out whether the grace period applies, whether to shorten it, and the start and end dates of the earlier job.

A change of position. The notice does not hide that this reverses the 2016 policy. DHS says it "acknowledges that it is changing position", that the 2016 rulemaking "did not sufficiently consider the negative impacts of the grace period provision", and that it "has also carefully considered reliance interests that may have been engendered by the current policy, and believes that any such reliance interests are outweighed by the goals described in this preamble."

History: what there was before 2017

The grace period was added by the AC21 final rule, "Retention of EB-1, EB-2, EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers", 81 FR 82398 (18 November 2016), effective 17 January 2017. The proposal describes the position before then: "Before 2017, there was no grace period for nonimmigrant workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification whose employment or activity ended during their period of lawful status." In that period a worker "was generally considered to have failed to maintain his or her status beginning on the day after the end of his or her employment or activity with the sponsoring employer and was expected to depart the United States immediately, unless otherwise authorized to lawfully remain in the United States."

The 2016 rule's purpose, as the proposal summarises it, was "to enhance job portability, stability, and flexibility for these high-skilled nonimmigrant workers upon cessation of employment." The same rule also created the up-to-10-day period in 8 CFR 214.1(l)(1) for more classifications. Because that paragraph runs from the end of the validity period, the notice points out, "it would not apply to a worker who ceases employment during the approved validity period." The proposal leaves (l)(1) alone.

The consequences DHS describes

The proposal sets out what the loss of status can lead to, in DHS's own list. It is worth reading because it shows what the grace period currently prevents:

Removability. "If an alien nonimmigrant fails to maintain status in the United States, he or she also becomes removable from the United States," citing INA section 237(a)(1)(C).
Extensions and changes of status. Extension and change-of-status requests generally require that the person has maintained status. DHS cites 8 CFR 214.1(c)(4)(i) and 8 CFR part 248.
Unlawful presence. DHS notes that, "depending on when the alien departs, the alien may risk accruing unlawful presence which could lead to the alien being inadmissible under INA 212(a)(9)(B) for either 3 or 10 years."
Later benefits. "Failure to maintain status and the failure to depart after the alien fails to maintain status may also carry consequences for purposes of obtaining discretionary immigration benefits in the future." DHS also cites a bar to adjustment of status in INA section 245(c)(2).

On the other side of the ledger, the proposal describes what workers did with the 60 days. They could look for "new job offers from employers that seek to file new nonimmigrant petitions that are coupled with a request for a change of status or an extension of stay". Alternatively, the notice says, a person could "seek to change his or her status to a nonimmigrant status that is not related to working in the United States, such as change of status to student (F) nonimmigrant visa classification to pursue studies in the United States, or seek to adjust his or her status."

DHS's cost discussion says "a subset of these aliens may incur lost income if they require additional days to conduct their job search and return to the United States because they would need to leave the country instead of being able to stay and begin new employment without departing." It adds that "some aliens may be issued Notices to Appear (NTA)", the document that starts removal proceedings; our page on the notice to appear explains it.

What the proposal would not change

The proposed regulatory text touches only 8 CFR 214.1(l)(2), the renumbering of (l)(3), and the cross-reference in 8 CFR 204.5(p)(1)(i). It does not mention these:

The 10-day periods in 214.1(l)(1).
H-1B portability. The rule allowing an eligible H-1B worker to start new employment when a new employer's non-frivolous petition is filed is a separate paragraph, 8 CFR 214.2(h)(2)(i)(H). Our page on H-1B requests for evidence quotes it.
The F-1 and J-1 grace periods (8 CFR 214.2(f)(5)(iv) and 214.2(j)(1)(ii)), which the notice lists as separate provisions, and the O-1 10-day period in 8 CFR 214.2(o)(12).
The $100,000 payment and the PROPOSED $103,265 fee, which are addressed on our pages on the $100,000 H-1B payment and the proposed cap fee.
Whether a particular worker's job has actually ended, whether a dismissal was a layoff and what each consequence means for a given person. Those turn on facts and dates.

Executive Order 14431, signed on 18 September 2026, separately tells agencies to take into account employers' layoffs when considering H-1B petitions; it does not address the grace period.

The current text and the proposed text side by side

Put the two versions next to each other to see the difference in the text.

Under today's text: - the 60 days exist unless DHS shortens or eliminates them; - the worker is not treated as having failed to maintain status "solely on the basis of a cessation of the employment"; - the worker may apply for an extension or change of status during the period under (l)(3).

Under the proposal, if it became final in this form: - (l)(2) would no longer exist; - the notice says the worker would be required "to depart from the United States immediately", "unless otherwise authorized to lawfully remain in the United States"; - the paragraph allowing an extension or change of status during an "authorized period described in paragraph (l)" would remain, but the 60-day period would no longer be one of those periods. The 10-day periods in (l)(1) would be.

What DHS does not say is when a final rule might come, whether it would apply to someone already in a grace period on the effective date, or how an unusual case would be handled. Those would be answered in a final rule, if there is one.

How to follow the proposal. The notice, 91 FR 57807 (FR doc. 2026-18631), is on the Federal Register and govinfo; the docket is USCIS-2026-0364 on regulations.gov. The final rule, if published, will appear as a new document. The eCFR shows whether 214.1(l)(2) has been removed.

If a job ends, the dates that matter are the last day of employment, the validity dates on the petition and approval notice, and any pending filing. An attorney or accredited representative needs those. Only the people listed in 8 CFR 292.1 may represent a worker or an employer before USCIS.

Finding a licensed attorney or accredited representative

Migratio's directory lists immigration attorneys and DOJ-accredited representatives. Listings are shown in a neutral order with factual filters (state, language, attorney or accredited representative). Migratio does not recommend, rank or match any lawyer, and it is not a lawyer referral service. Check any listing yourself against the state bar or the EOIR roster before you sign anything.

See attorneys and accredited representatives in the directory.

Notaries public, notarios and immigration consultants are not lawyers and cannot give immigration legal advice. Only a licensed attorney or a DOJ-accredited representative can.

Migratio is not a law firm and does not give legal advice. Only a licensed attorney or a DOJ-accredited representative can advise you.

Questions people ask

Is the 60-day grace period being eliminated?

DHS has proposed it. A notice of proposed rulemaking, "Eliminating the Discretionary 60-Day Grace Period" (91 FR 57807, 11 September 2026), would remove 8 CFR 214.1(l)(2). Comments are due 10 November 2026. As at 10 October 2026 it is not final, and the paragraph remains in the regulations.

Who has the 60-day grace period now?

Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status and their dependents. The rule gives "up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period", and DHS "may eliminate or shorten this 60-day period as a matter of discretion."

Can I work during the 60-day grace period?

Not on the basis of the grace period itself. 8 CFR 214.1(l)(2) says: "Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period." Authorisation to work under another rule, such as H-1B portability, is a separate question.

What would happen to people already in a grace period if the rule becomes final?

The proposed text does not say. It has no transition provision. A final rule would state its own effective date and any transition terms.

Does the proposal affect the F-1 grace period after OPT or study?

No. The proposal covers the classifications in 8 CFR 214.1(l)(2): E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN. The F-1 departure period is in a different rule, covered on our page on the F-1 grace period.

How do I comment on the proposal?

Through regulations.gov under docket USCIS-2026-0364, by 10 November 2026. The notice says comments sent by email or letter to DHS or USCIS officials are not treated as comments on the proposed rule.

Sources

Last checked 2026-10-10.

Related guides

H-1B request for evidence: what the regulations say about specialty occupation, wages, worksites and the response deadline — An H-1B RFE gives at most twelve weeks to respond and no extensions (8 CFR 103.2(b)(8)(iv)). The regulations behind the usual questions are the specialty occupation definition and four criteria in 8 CFR 214.2(h)(4), the bona fide position and third-party rules, and the required-wage rule in 20 CFR 655.731. This page sets them out without telling anyone how to respond.
The $100,000 H-1B payment: what the proclamations say, and what USCIS says about the court order — Proclamation 10973 (September 2025) restricts entry of H-1B workers unless a $100,000 payment accompanies the petition, and Proclamation 11069 (September 2026) extends it for 12 more months. USCIS's fee page says that on 8 June 2026 a federal court vacated the agency guidance implementing the payment, that DHS is complying while it considers next steps, and that DHS still plans to collect the payment if the order is lifted. This page reports those documents as at 10 October 2026 and does not say how any individual petition is treated.
The proposed $103,265 H-1B cap fee: what DHS proposed, who would pay it, and where the rulemaking stands — PROPOSED, not in force: on 25 August 2026 DHS proposed a $103,265 fee, payable at filing, on every H-1B cap-subject petition (including advanced-degree-exemption petitions), on top of all other fees and any proclamation payment. The comment period closed on 24 September 2026. As at 10 October 2026 no final rule has been published, so the current fees in 8 CFR 106.2 still apply.
F-1 grace period: 30 days for new admissions, 60 for some students already here — Under 8 CFR 214.2(f)(5)(v), as amended by a final rule effective 15 September 2026, an F-1 student gets an additional 30 days after the program end date, the 4-year maximum or the end of approved OPT. The old window was 60 days. Students already in the United States on 15 September 2026 under duration of status have a transition rule that still counts 60 days.
Notice to Appear (NTA): what it is, what it must say and what happens next — A Notice to Appear starts removal proceedings once it is filed with an immigration court. The statute lists what it must contain, sets a minimum of 10 days before the first hearing and requires an address on file with the court. Missing a hearing after proper written notice can lead to an order of removal in the person's absence.
I-140 denied: what the regulations say about the appeal, a motion, the priority date and a pending I-485 — 8 CFR 204.5(n)(2) makes an I-140 denial in the main employment-based classifications "appealable to the Associate Commissioner for Examinations," which is the AAU route on Form I-290B ($800) within 30 days of service. 8 CFR 204.5(e)(3) says "A denied petition will not establish a priority date." A pending I-485 that rests on the petition is affected.
Who can legally give US immigration advice? — Attorneys in good standing and DOJ-accredited representatives of recognized non-profits can advise and represent you; a few narrow categories can appear unpaid. Notaries, notarios and immigration consultants cannot give immigration legal advice. Form preparers may only fill in blanks for a nominal fee.