Close up black and white image of a clock at an angle showing the hours, minutes and seconds hand. Image by noor Younis.
The clock is running on the 60-day grace period in more ways than one. The window itself is 60 days. And the public comment period on DHS’s proposal to eliminate it stays open until November 10, 2026.
For many employment-based nonimmigrants, this grace period has been a meaningful safety net. Department of Homeland Security (DHS) created it through a 2016 rule during the President Barack Obama administration, that took effect in January 2017, giving workers up to 60 days, or until the end of their authorized stay if that’s sooner, to find a new sponsor or work out their next steps. It currently covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN workers, along with their dependents.
To understand what’s at stake, it helps to remember what came before. Before the 2016 rule, workers in these categories generally had no grace period when their employment was terminated. What did exist was a short 10-day window tied to the end of an authorized validity period. It was already available to H-1B and O-1 workers, and the 2016 rule extended it to E-1, E-2, E-3, L-1 and TN workers. It gave up to 10 days after validity ended to depart or take steps to extend, change, or otherwise maintain status. It wasn’t automatic either. DHS treated 10-day periods as a matter of discretion, granted case by case.
Then DHS issued the 2016 rule, which took effect in January 2017. The 60-day grace period was designed to protect workers who suddenly find themselves out of a job, giving them time to file a new petition with another employer without being deemed out of status immediately upon termination. It came with a limit: it was a one-time period of 60 days, or the length of the existing work authorization, whichever is shorter.
The Proposal
Under the Trump administration’s new proposed rule, a worker in one of these categories would be considered to have failed to maintain status the day after the qualifying employment ends, and would be expected to depart the United States immediately unless otherwise authorized to remain.
It’s worth noting that a return to the old 10-day period wouldn’t solve this. DHS said the 10-day grace period would apply only after the validity period ends, so it wouldn’t help a worker whose job ends partway through their authorized stay. Also, returning to 10 days would not cover all affected workers.
No Change Yet
This is merely a proposal, not a final rule. The grace period remains in place while the rule goes through the comment process, and it won’t take effect until DHS reviews the public feedback and publishes a final regulation with an implementation date.
DHS’s reasoning, and the pushback
DHS points out that the grace period isn’t required by statute, and cites the administrative burden of administering it. It also offered some numbers: an average of 65,752 covered workers a year experienced a job loss or changed employers between 2021 and 2025. Just under 6% had a new employer file to sponsor them within the window, and another 1.7% filed to extend or change status.
Others see it differently. The U.S. Chamber of Commerce has stated that the grace period has been helpful in reducing disruptions for companies and their workers during job changes, and the administration should take this into consideration. There’s an employer-side cost to weigh as well: eliminating the window would add financial burdens for companies that terminate foreign workers, since some visa categories require the employer pay for transportation back to the worker’s home country.
Why it matters
The grace period was designed to let workers remain in the U.S. while pursuing new job offers. This is especially important these days as massive corporate layoffs continue to sweep across our economy. Whether that cushion stays, changes, or goes away will matter to workers, their families, and the employers who hire them.
We’re keeping our eyes on this very important issue. DHS has said it will revise, finalize or withdraw the rule based on public feedback, and we’ll share developments as they come.
Source: bloomberglaw