Important disclaimer
Haven provides general information only. Nothing on this page is legal advice, and it should not be treated as a substitute for advice from a qualified immigration lawyer or accredited legal representative. Immigration outcomes depend on the specific facts of your case. If you need case-specific guidance, consult a lawyer before making decisions or filing.
What Happened
The Department of Homeland Security's proposed rule to eliminate the 60-day grace period for employment-based nonimmigrant workers cleared review at the White House Office of Information and Regulatory Affairs (OIRA) on Thursday, August 27, 2026. [Bloomberg Law first reported](https://news.bloomberglaw.com/daily-labor-report/h-1b-workers-to-lose-grace-period-in-white-house-approved-plan) the clearance on August 28, confirming the rule is now approved for publication.
The proposed rule, identified as [RIN 1615-AD22](https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202604&RIN=1615-AD22) in the federal regulatory tracking system, was first submitted to OIRA on August 7, 2026. DHS submitted the rule for the standard interagency review that precedes publication in the Federal Register. OIRA's clearance means the White House has signed off on the regulatory text, and the next step is formal publication in the Federal Register — which could happen within days or weeks.
Once published, the proposed rule will open a public comment period, typically lasting 30 to 60 days. Only after DHS reviews public comments and issues a final rule can the elimination take effect. That process will take months at minimum.
Why This Matters Now
OIRA clearance is a critical regulatory milestone. Before clearance, the rule was still under interagency review and could have been modified, delayed, or pulled. Now that the White House has approved the regulatory text, publication is a near-certainty. This shifts the story from 'DHS is considering this' to 'DHS is about to formally propose this.'
The 60-day grace period, established by DHS regulation in 2017 under [8 CFR 214.1(l)(2)](https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/subpart-A/section-214.1), gives certain employment-based nonimmigrant workers up to 60 consecutive days after their employment ends — or until the end of their authorized validity period, whichever is shorter — to find a new employer, apply for a change of status, or arrange departure from the United States. Workers cannot work during the grace period, but they are not considered to have violated their status.
If the proposed rule is finalized and the grace period is eliminated, workers who lose their jobs would face the prospect of immediately falling out of status unless USCIS separately exercises discretion to excuse the lapse — a case-by-case determination with no guaranteed outcome.
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Who's Affected
The 60-day grace period currently applies to workers in several nonimmigrant visa categories. If the proposed rule is finalized, all of the following categories would lose the post-employment buffer:
- **H-1B** specialty occupation workers and **H-4** dependents
- **O-1** extraordinary ability workers (O-1A and O-1B) and **O-3** dependents
- **L-1** intracompany transferees (L-1A and L-1B) and **L-2** dependents
- **E-1, E-2, and E-3** treaty traders, investors, and Australian specialty occupation workers
- **H-1B1** workers from Chile and Singapore
- **TN** USMCA professionals from Canada and Mexico
Dependents' immigration status is tied to the principal worker. A job loss that triggers immediate status issues for an H-1B holder also affects H-4 spouses and children — potentially disrupting H-4 EAD work authorization, children's school enrollment, and family stability.
The Regulatory Timeline Ahead
Understanding the rulemaking process is essential for assessing how much time remains before any change takes effect:
- **OIRA review completed:** August 27, 2026 ✓
- **Federal Register publication:** Imminent — could be days to weeks from now
- **Public comment period:** 30 to 60 days after publication (the exact length will be specified in the published rule)
- **DHS reviews comments and drafts final rule:** Typically several months. DHS must respond to substantive comments
- **Final rule published with effective date:** Likely spring 2027 at the earliest, assuming no litigation delays
The 60-day grace period remains fully in effect today. Workers who lose their employment right now still have the existing protection. Nothing changes until a final rule is published with a specified effective date.
The Broader Regulatory Wave
The grace period elimination is not happening in isolation. DHS is pursuing multiple major regulatory changes to the employment-based immigration system simultaneously.
- **$103,265 H-1B cap-subject fee** (published in the Federal Register on August 25, 2026): [Public comments due by September 24, 2026](https://www.regulations.gov). Would impose a new fee on top of all existing H-1B filing costs for every cap-subject petition. Legal challenges are widely anticipated
- **H-1B cap exemption reform** (RIN 1615-AD00): Submitted to OIRA on August 24, 2026. Would revise eligibility for cap exemptions, increase scrutiny of employers that have violated program requirements, and increase oversight of third-party placements. [Bloomberg Law reported](https://news.bloomberglaw.com/daily-labor-report/rule-to-boost-oversight-of-h-1b-program-under-white-house-review) the submission on August 25
- **H-4 EAD revocation** (RIN 1615-AD14): Added to the DHS long-term regulatory agenda. Would eliminate employment authorization for spouses of H-1B workers. No target date for proposed rule publication. [Bloomberg Law reported](https://news.bloomberglaw.com/daily-labor-report/h-1b-holders-spouses-would-lose-work-permits-in-new-trump-plan) the agenda listing on August 29
Taken together, these four regulatory proposals represent the most significant restructuring of the H-1B program in decades. Each proceeds through notice-and-comment rulemaking independently, meaning each will have its own comment period and timeline.
What Attorneys Should Know
The OIRA clearance triggers several immediate practice considerations:
- **Prepare client advisories now.** The Federal Register publication could arrive any day. Attorneys should have template communications ready to send as soon as the proposed rule and comment period details are published
- **Calendar the comment deadline.** Once the Federal Register notice publishes, the comment window will be short — likely 30 to 60 days. Identify clients and industry groups that should submit comments. Well-documented comments citing economic impact data, workforce disruption, and legal arguments carry weight in the final rulemaking record
- **Review 8 CFR 214.1(l)(2) and related provisions.** The current grace period regulation was part of the 2017 final rule (81 FR 82398, November 18, 2016) addressing retention of employment-based immigrant workers. Understanding the original regulatory justification strengthens comment arguments
- **Track the regulatory docket.** The proposed rule will be published under DHS Docket No. USCIS-2026 (exact number TBD). Once published, the full proposed regulatory text will be available on [Regulations.gov](https://www.regulations.gov) and in the Federal Register
- **Assess litigation viability.** The administration's recent track record on employment-based immigration rules — including the vacatur of the $100,000 H-1B proclamation fee — suggests that APA challenges to the grace period elimination may be viable, particularly on the adequacy of the agency's cost-benefit analysis and the reasonableness of the policy reversal
What Applicants Should Do
While the rule is not yet in effect, the OIRA clearance is a signal to begin preparing:
- **Do not panic — the grace period is still in effect today.** If you lose your job right now, you still have up to 60 days to find a new employer, file for a change of status, or arrange departure
- **Build an emergency plan.** Identify 2–3 potential employers or alternative visa categories you could pursue if you lost your job without a grace period. Talk to your immigration attorney about your specific options now, not after a layoff
- **Maintain personal copies of all immigration documents.** Keep copies of your I-797 approval notices, I-94 records, passport visa stamps, LCA (H-1B), and any pending I-140 or PERM documentation in a location you control — not just in your employer's files
- **Understand the comment process.** When the proposed rule publishes in the Federal Register, individual workers can submit public comments. Personal stories about how the grace period helped during a job transition carry weight. Your attorney can help you prepare a comment
- **If you have a pending I-140 (EB green card petition), check your portability options.** Workers with approved I-140 petitions have additional protections under INA § 204(j) that are separate from the grace period. Understand whether your green card process provides independent stability
If your employer announces layoffs or restructuring in the coming months, consult an immigration attorney immediately — even while the grace period is still in effect. Planning ahead is far more effective than reacting after a termination notice.
What Changed Since Our Last Coverage
Haven [covered the initial submission of RIN 1615-AD22 to OIRA](/blog/dhs-60-day-grace-period-elimination-proposed-rule-2026) on August 10, when DHS sent the proposed rule for interagency review on August 7. At that time, the rule was under White House review with no guaranteed timeline for advancement.
The key development since then: **OIRA completed its review on August 27 and cleared the rule for publication.** This means the regulatory text has been approved at the highest executive-branch review level. Federal Register publication — and with it, the opening of a formal public comment period — is now a matter of when, not if.
Sources
US may scrap the 60-day window that gives foreign workers time after losing their jobs
India Times
Open source8 CFR 214.1(l)(2) — Grace Period for Nonimmigrant Workers
Electronic Code of Federal Regulations
Open sourceFrequently asked
Has the 60-day grace period been eliminated yet?
No. The proposed rule cleared OIRA review on August 27, 2026, but it has not been published in the Federal Register yet. The grace period remains fully in effect today. Even after Federal Register publication, a public comment period and a final rule are required before any changes take effect — a process that will take months at minimum.
What does OIRA clearance mean for the proposed rule?
OIRA clearance means the White House Office of Information and Regulatory Affairs has completed its interagency review of the proposed regulatory text and approved it for publication. This is a significant milestone because it signals that the administration is committed to moving forward. The next step is publication in the Federal Register, which opens the public comment period.
Which visa categories are affected by the proposed grace period elimination?
The current 60-day grace period under 8 CFR 214.1(l)(2) applies to H-1B, H-1B1, O-1, L-1 (L-1A and L-1B), E-1, E-2, E-3, and TN nonimmigrant workers, as well as their dependents (H-4, O-3, L-2, etc.). If the proposed rule is finalized, all of these categories would lose the post-employment grace period.
How can I submit a public comment on the proposed rule?
Once the proposed rule is published in the Federal Register, the notice will include instructions for submitting public comments, typically through Regulations.gov. The comment period will last 30 to 60 days from the date of publication. Individual workers, employers, industry groups, and attorneys can all submit comments. Personal stories about how the grace period affected your immigration experience are particularly relevant.
Can the grace period elimination be challenged in court?
Yes. If finalized, the rule could face legal challenges under the Administrative Procedure Act. Challengers could argue that DHS failed to adequately justify reversing a regulation it defended as reasonable in 2017, or that the cost-benefit analysis was insufficient. The administration's recent mixed record on H-1B-related rules — including the vacatur of the $100,000 proclamation fee — suggests that judicial scrutiny of employment-based immigration rulemaking remains robust.