United States | DHS proposes eliminating 60-day grace period for certain employment-based nonimmigrants

Today, the Department of Homeland Security published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would eliminate the discretionary grace period of up to 60 days currently available to certain employment-based nonimmigrants and their dependents following employment status expiration or termination.

Key takeaways:

NPRM applies to certain employment-based visa categories. DHS proposes to eliminate the discretionary grace period of up to 60 days currently available to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants and their dependents following the end of qualifying employment.

Proposal would require immediate departure. The proposal asserts that it would require affected foreign nationals to depart the United States immediately upon losing the employment or activity that forms the basis of their status, unless otherwise authorized to remain in the country.

DHS reasons proposal would reduce administrative burden on agency. According to the NPRM, “This proposal restores a direct relationship between an alien’s nonimmigrant status and the specific employment or activity that formed the basis of his or her admission or grant of status in the United States and reduces administrative burden.”

Public comment period open. DHS will accept comments on the proposal for 60 days starting today through Nov. 10, 2026.

Additional information: The final rule establishing the current grace period went into effect on Jan. 17, 2017, under regulatory provisions codified at 8 CFR 214.1(l)(2), providing certain high-skilled foreign workers with flexibility to pursue new employment opportunities, change status or pursue other immigration options after job loss. If finalized, the rule would reinstate the pre-2017 framework under which affected nonimmigrants generally lose status upon expiration or termination of qualifying employment.

The proposed rule is in a preliminary rulemaking stage and is not currently in effect. After the public comment period ends, DHS will be required to review and consider the feedback it receives in formulating a final regulation. BAL is closely monitoring the progress of this regulation and will provide updates on developments.

This alert has been provided by the BAL U.S. Practice Group.

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