DHS Moves to Eliminate 60-Day Grace Period for H-1B and O-1 Workers

What Happened

On August 7, 2026, the Department of Homeland Security submitted a proposed rule to the White House Office of Information and Regulatory Affairs (OIRA) that would eliminate the 60-day grace period currently available to H-1B workers and other nonimmigrant visa holders after their employment ends. The proposed rule is identified as [RIN 1615-AD22](https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202604&RIN=1615-AD22) in the federal regulatory tracking system.

Bloomberg Law [first reported](https://news.bloomberglaw.com/daily-labor-report/h-1b-workers-would-lose-60-day-job-loss-grace-period-in-dhs-plan) the submission on August 7, confirming that the rule had been sent to OIRA for the standard interagency review that precedes publication in the Federal Register.

The 60-day grace period was 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), as part of a broader final rule addressing retention of employment-based immigrant workers and program improvements for high-skilled nonimmigrant workers (81 FR 82398, November 18, 2016). Under the current regulation, a worker whose employment is terminated may remain in the United States for up to 60 consecutive days — or until the end of the authorized validity period, whichever is shorter — without being considered to have failed to maintain status.

Who's Affected

The 60-day grace period currently applies to workers in several nonimmigrant visa categories and their dependents. If the proposed rule is finalized, all of these 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

What the Grace Period Currently Allows

Under the existing regulation at 8 CFR 214.1(l)(2), workers in the covered categories who lose their jobs — whether through layoff, termination, or resignation — are not considered to have fallen out of status during the 60-day window. This gives affected workers time to:

• Find a new qualifying employer willing to file an H-1B transfer or other petition
• Apply for a change of status to another nonimmigrant category (such as B-2 or F-1)
• File for an extension of stay with a new employer before status lapses
• Make orderly arrangements to depart the United States

What Attorneys Should Know

The proposed rule is at the earliest stage of the federal rulemaking process. Submission to OIRA triggers an interagency review period that typically lasts 90 days but can be extended. After OIRA clears the rule, DHS would publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register, opening a public comment period — usually 30 to 60 days. Only after reviewing comments would DHS issue a final rule, with a specified effective date.

This means the 60-day grace period remains in full effect today. No employer or worker should take action based on the proposed rule as though it has been finalized. However, the submission to OIRA signals clear administrative intent to pursue this change, and attorneys should begin preparing clients accordingly.

The regulatory authority DHS would rely on to rescind the grace period is the same broad authority under which it was created: DHS's general rulemaking power over the terms of nonimmigrant status under [INA § 214](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1184&num=0&edition=prelim) and 8 CFR Part 214. Because the grace period was established by regulation rather than statute, it can be removed by regulation — though the rulemaking must survive notice-and-comment requirements under the Administrative Procedure Act (APA) and any subsequent legal challenges.

Practitioners should also note that DHS already has discretion under the existing regulation to shorten or deny the grace period in individual cases — for example, where a worker has accrued unlawful presence or engaged in unauthorized employment. The proposed rule would go further by eliminating the grace period entirely as a matter of regulatory policy.

Context: Part of a Broader H-1B Crackdown

The proposed grace period elimination is the latest in a series of regulatory actions targeting employment-based nonimmigrant programs. Recent measures include:

• **$100,000 H-1B fee (Proclamation 10973):** Imposed in September 2025, [vacated by a federal court](https://haven-five-hazel.vercel.app/blog/federal-court-vacates-100000-h1b-fee-2026) in June 2026, and currently blocked pending appeal after the [First Circuit denied a stay](https://haven-five-hazel.vercel.app/blog/first-circuit-denies-stay-100k-h1b-fee-july-2026) on July 24, 2026. The Proclamation expires September 20, 2026 unless extended.
• **9-11 Response Fee expansion:** A [final rule published August 10, 2026](https://haven-five-hazel.vercel.app/blog/dhs-911-fee-h1b-l1-extension-final-rule-2026) extends the $4,000 H-1B / $4,500 L-1 biometric fee to extension petitions filed by employers meeting the 50-50 threshold.
• **PA-2026-05 (RFE/NOID reversal):** USCIS [restored officer discretion](https://haven-five-hazel.vercel.app/blog/uscis-rfe-noid-policy-reversal-august-2026) to deny benefit requests without first issuing RFEs or NOIDs, effective August 5, 2026.
• **H-1B to B-2 change of status blocked:** USCIS [issued guidance](https://haven-five-hazel.vercel.app/blog/uscis-blocks-h1b-b2-status-change-layoffs-2026) restricting the ability of laid-off H-1B workers to change to B-2 visitor status.

What Applicants Should Do

The grace period has not been eliminated yet. The proposed rule must go through OIRA review, Federal Register publication, a public comment period, and a final rulemaking before it takes effect. That process typically takes 6 to 18 months. However, workers in affected categories should begin preparing now:

• **Maintain personal copies of all immigration documents** — I-94, H-1B approval notices (I-797), employment records, pay stubs, and prior filings. Do not rely solely on your employer to retain these.
• **Know your I-94 expiration date** and H-1B validity period. Understand the difference between the two and which one governs your authorized stay.
• **Review your green card case** — If you have an approved I-140 or a pending I-485, understand what protections those provide independently of H-1B status. An approved I-140 alone does not grant nonimmigrant status, but a properly filed I-485 may provide a separate basis to remain in the United States.
• **Check your family's status** — If you have an H-4 spouse or children, understand that their status is derived from yours. A change in your H-1B status could immediately affect their ability to remain, work, or study in the United States.
• **Identify an immigration attorney now** — Do not wait until a layoff occurs. Have a relationship with counsel who can act quickly if your employment ends.
• **Monitor the Federal Register** — When DHS publishes the NPRM, there will be a public comment period. Both individuals and professional organizations can submit comments opposing or supporting the rule.

Timeline and What Comes Next

The regulatory pipeline for RIN 1615-AD22 follows a predictable sequence, though the timeline for each step is uncertain:

• **Now:** OIRA interagency review (typically 90 days, can be extended)
• **After OIRA clearance:** Publication as a Notice of Proposed Rulemaking (NPRM) in the Federal Register
• **After publication:** Public comment period (usually 30–60 days)
• **After comment period:** DHS reviews comments and decides whether to issue a final rule
• **Final rule:** Published with a specified effective date (often 30–60 days after publication)