The Department of Homeland Security (DHS) is considering a significant change to the rules governing certain non-immigrant workers whose employment ends before the expiration of their authorized stay. A proposed rule that would eliminate the existing 60-day grace period is currently being reviewed by the Office of Management and Budget (OMB).
The proposal has not yet been published, so the precise scope of the change, and how they would apply in practice, remains unclear.
What Is the 60-Day Grace Period?
Under current regulations, certain non-immigrant workers may remain in the United States for up to 60 days after their employment ends, provided their authorized stay has not expired. The grace period applies to various employment-based non-immigrant classifications, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, as well as qualifying dependents.
The period ends earlier if the individual’s I-94 expires. During the grace period, an individual may have an opportunity to secure new employment, pursue another immigration status, apply for adjustment of status, or, where applicable, seek employment authorization based on compelling circumstances.
The grace period was introduced through regulations published in 2016 and became effective in 2017. Before that change, there was no comparable regulatory grace period following the termination of employment.
What Could Change?
If DHS ultimately eliminates the grace period, affected workers could lose the additional time currently available to address their immigration status after employment ends.
For example, an individual whose employment terminates while their underlying petition remains valid could no longer automatically rely on a 60-day period of authorized stay. Depending on the final rule and the individual’s circumstances, the person could instead need to depart the United States promptly or pursue another available immigration option.
The proposed change could therefore have a particularly significant impact on workers who experience an unexpected termination and need additional time to identify a new employer or determine their next immigration step.
At this stage, however, it is important not to assume that the current proposal will necessarily become final in its present form. The details will depend on the text DHS ultimately publishes and any changes made during the rulemaking process.
Where Things Stand
The proposal is currently with OMB for review. If the review is completed and DHS proceeds with publication, the proposed rule will appear in the Federal Register and will be subject to a public comment period.
Following the comment period, DHS could modify the proposal, withdraw it, or proceed toward a final rule. Even if DHS moves forward, the change would not take effect immediately; additional steps in the federal rulemaking process would be required.
For now, the existing 60-day grace period remains available. Employers and nonimmigrant workers should therefore continue to follow the current rules unless and until a final rule becomes effective.