On September 11, 2026, the U.S. Department of Homeland Security (DHS) published a proposed rule that would eliminate the current discretionary 60-day grace period available to certain employment-based nonimmigrants and their dependent family members following the cessation of employment.  

What is the Current Rule? 

Since January 2017, certain employment-based nonimmigrants who lose their employment before the expiration of their authorized period of stay have generally been permitted to remain in the United States for up to 60 days (or until their I-94 expiration date, whichever is earlier). During that period, individuals are considered to be maintaining valid nonimmigrant status and may pursue other immigration options, including: 

• Securing new employment and filing a change of employer petition; 
• Filing an application to change nonimmigrant status; 
• Filing an adjustment of status application, if eligible; or 
• Taking other steps to remain in lawful status.  

What Would Change Under the Proposed Rule? 

The proposed rule would eliminate the regulatory provision at 8 CFR § 214.1(l)(2) that currently provides this discretionary grace period. Under the proposed rule, affected foreign nationals would now be expected to depart the United States immediately upon termination of the employment or activity that serves as the basis for their status, unless they have another independent basis to remain lawfully in the United States.  

Who Would Be Affected? 

The proposed change would affect nonimmigrants in the following classifications: 

• H-1B 
• H-1B1 
• L-1A/B 
• O-1 
• TN 
• E-1 
• E-2 
• E-3 

The proposal would also impact dependent spouses and children whose immigration status derives from the principal beneficiary’s status.  

Potential Impact on Foreign National Employees 

If the rule is finalized as proposed: 

• Foreign nationals who are terminated from their employment will no longer have a 60-day grace period to remain in the United States while seeking a new employer. 
• Employment transitions that currently occur through H-1B portability and similar processes will become more complicated.  
• Individuals who are pursuing permanent residence through employment-based sponsorship may face increased challenges following a job loss.  
• Dependent spouses and children would likewise lose the benefit of the grace period and may need to depart the United States when the principal worker’s qualifying employment ends, absent another independent basis for maintaining status. 

Potential Impact on Employers 

If the final rule is finalized as proposed, employers can expect: 

• Reduced flexibility when recruiting foreign national talent currently working in the United States; 
• Increased urgency surrounding immigration planning during workforce reductions and restructurings; 
• Greater reliance on consular processing for foreign nationals who must depart the United States before a new petition can be filed or approved; and 
• Additional disruption when transitioning foreign national employees between employers.  

What Employers and Employees Should Do Now 

At this time, the proposal is not law. The rule has been issued as a Notice of Proposed Rulemaking (NPRM), and DHS is accepting public comments before determining whether to issue a final rule. The current 60-day grace period remains in full effect unless and until a final rule is published and becomes effective.  

Employers and foreign national employees should remain aware of this development and consider the potential impact on workforce planning, employee retention and recruitment, ongoing green card sponsorship processes, and immigration compliance strategies.  

If you have questions regarding how this proposed rule could affect your workforce or immigration strategy, please contact a Foster LLP attorney.  

Foster LLP will continue to monitor the developments and provide updates regarding the rulemaking process and any final action taken by DHS through our Immigration Updates©, articles, and blogs at www.fosterglobal.com.