DHS Grace Period Rule Published — Comments Due November 10

What Happened

On September 11, 2026, the Department of Homeland Security published its [proposed rule 'Eliminating the Discretionary 60-Day Grace Period'](https://www.federalregister.gov/documents/2026/09/11/2026-18631/eliminating-the-discretionary-60-day-grace-period) in the Federal Register (Document No. 2026-18631, RIN 1615-AD22, 91 FR 57807, 22 pages). The rule would remove the provision at [8 CFR 214.1(l)(2)](https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/subpart-A/section-214.1) that gives E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers up to 60 days after their employment ends to find a new employer, change status, or prepare an orderly departure.

The notice sets a **comment deadline of November 10, 2026** — the Federal Docket Management System will accept comments until midnight Eastern Time at the end of that day, under DHS Docket No. USCIS-2026-0364. As of September 15, the docket had already received more than 9,300 public comments.

Publication is the third step in a fast-moving sequence: DHS first [previewed the proposal on August 7, 2026](/blog/dhs-60-day-grace-period-elimination-proposed-rule-2026) when it sent the rule to the White House for review, [OIRA cleared it on August 27](/blog/60-day-grace-period-oira-clearance-federal-register-2026), and now the full regulatory text and 22-page preamble are public for the first time. [Reuters reported](https://srnnews.com/trump-administration-proposes-waiving-grace-period-for-h-1b-holders-after-job-loss/) the publication, and [The Washington Post covered the rule's immediate-departure consequence](https://www.washingtonpost.com/immigration/2026/09/10/new-rule-would-require-some-visa-holders-leave-us-immediately-after-losing-job/).

Who's Affected

The grace period at issue applies after cessation of the employment that formed the basis of a worker's status. If finalized, every category listed in 8 CFR 214.1(l)(2) loses the post-employment buffer:

• **H-1B** specialty occupation workers and their H-4 dependents — by far the largest affected population; DHS's own data shows 99 percent of beneficiaries who lost a job or changed employers from FY2021 through FY2025 were in H-1B status
• **O-1** extraordinary-ability workers (O-1A and O-1B) and O-3 dependents
• **E-1, E-2, and E-3** treaty traders, investors, and specialty-occupation professionals from Australia
• **L-1** intracompany transferees, **H-1B1** workers from Chile and Singapore, and **TN** professionals

What the Published Text Reveals

Federal Register publication makes the rule's full justification public for the first time, and the preamble contains data DHS has never released before:

• **1.9 million assessments.** From the beginning of FY2018 (October 1, 2017) through May 20, 2026, over 1.9 million petitions and applications required USCIS to assess whether the up-to-60-day grace period could have applied — the agency's core administrative-burden figure
• **5.77 percent transition rate.** From FY2021 through FY2025, only 5.77 percent of the 328,758 primary beneficiaries who lost a job or changed employers had a new Form I-129 filed by a new employer within 60 days of the old petition's withdrawal. Another 1.70 percent filed Form I-539 change-of-status applications and 0.59 percent filed Form I-485
• **65,752 workers per year.** The average annual number of primary beneficiaries who experienced cessation of employment or changed employers — ranging from a high of 80,034 in FY2023 to a low of 40,959 in FY2021
• **NTA exposure acknowledged.** DHS estimates that under the proposed rule some aliens may be issued Notices to Appear, incurring costs of immigration hearings before EOIR as part of removal proceedings — the rule's own acknowledgment of a foreseeable consequence
• **$131,000 median wage baseline.** DHS calculated median annual wages of $131,000 in FY2025 for H-1B workers whose revoked petition was followed by a new I-129 within the grace period — a figure it uses to estimate foregone wages if the grace period disappears

What Attorneys Should Know

The comment period is the last formal opportunity to shape the final rule, and the published preamble gives commenters new material to work with:

• **Docket and deadline.** Comments must reference DHS Docket No. USCIS-2026-0364 and be filed through [Regulations.gov](https://www.regulations.gov) on or before November 10, 2026 (midnight Eastern). The NPRM also amends 8 CFR Part 204, so comments can address both parts
• **Interrogate the 5.77 percent statistic.** It counts only new I-129 filings within 60 days of withdrawal, and it excludes I-539 and I-485 users — and workers who used the window to depart the U.S. rather than overstay. Commenters can argue the metric understates the grace period's actual utility
• **The burden argument cuts both ways.** USCIS has performed these assessments since 2017 — over 1.9 million of them, per DHS's own data — without eliminating the provision. Press DHS to explain why the burden became intolerable in 2026
• **NTA interaction.** The preamble's Notice-to-Appear acknowledgment invites comments on how elimination would interact with USCIS's enforcement priorities, and whether a final rule would need a conforming NTA policy
• **Potential APA vulnerability.** If finalized, a reasoned-explanation challenge may be viable: DHS is reversing a 2016 policy it then defended as reasonable. Recent litigation outcomes — including the vacated $100,000 H-1B proclamation fee — show courts are scrutinizing this administration's employment-based immigration actions closely

What Applicants Should Do

The grace period is still the law today — but the window to influence the final rule, and to plan personally, is now:

• **Understand the rule is not in effect.** If you lose your job today, you still have up to 60 days to find a new employer, file a change of status, or arrange departure. A final rule is months away at the earliest
• **Submit a comment before November 10.** Individual stories carry weight — how the grace period helped you transition employers, keep your family stable, or depart without overstay. Your attorney can help polish it and file it on the docket
• **Build an emergency plan now.** Identify backup employers and understand which alternative visa categories you could pursue if the grace period disappears
• **Keep personal copies of your immigration records.** I-797 approvals, I-94 records, visa stamps, and any pending I-140 or PERM documentation — do not rely solely on your employer's files
• **Know your I-140 portability rights.** INA 204(j) protections for changing employers during a pending or approved green card process are separate from the grace period and are not eliminated by this proposal