United States: DHS Proposal to Eliminate 60-Day Nonimmigrant Grace Period Clears Federal Review
August 28, 2026
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At a glance
- The Office of Management and Budget has cleared a Department of Homeland Security proposed rule that would eliminate the discretionary, maximum 60-day grace period accorded to certain nonimmigrants whose employment ceases.
- The next step for the proposal is publication in the Federal Register with a public comment period. The specific content of the rule will not be known until publication.
- The regulation will not take effect until public comments are considered and the rule is finalized, which typically takes several months.
The issue
The Office of Management and Budget (OMB) has completed its review of a proposed Department of Homeland Security (DHS) regulation that, if finalized, would eliminate the discretionary, maximum 60-day grace period accorded to certain principal nonimmigrants and their dependents if the principal’s employment ceases before their period of stay expires.
The next step in the regulatory process is for the proposed rule to be published in the Federal Register for a public comment period, typically a period of 30 or 60 days.
Details of the proposal will not be known with specificity until publication. If the discretionary 60-day grace period is eliminated, foreign nationals whose employment ceases prematurely (and their dependents) would no longer be maintaining status and would generally be required to depart the United States immediately, unless U.S. Citizenship and Immigration Services (USCIS) exercises its separate discretion to forgive the lapse in status and allow the foreign national to change status or change employers within the country.
Background
The discretionary, maximum 60-day grace period was created by regulation in 2016 and took effect in early 2017. Under the rule, E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants (and their dependents) who are granted the grace period are not considered to have failed to maintain nonimmigrant status solely because the principal’s employment ceased. The maximum duration of the grace period is the shorter of 60 days or until the principal’s I-94 expiration date. It is available once during each authorized petition validity period. DHS has the discretion to shorten or refuse to accord the grace period but rarely did so until recent months, with grace period refusals becoming more common.
The grace period was instituted to mitigate the negative immigration consequences of employment loss. It allows affected individuals to seek other employment in the same nonimmigrant category or change status without the need to depart the United States, or to prepare for departure. The grace period applies whether the employment cessation is voluntary or involuntary.
What’s next for the proposal
The proposal will next be published for a public comment period, generally of 30 or 60 days. The regulation would not take effect until it is finalized, which typically takes several months.
Once the proposal is published, feedback from employers will be important to inform the government of the impact of the proposal on the business community. If your organization wishes to comment, Fragomen’s Government Strategies Group can assist.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
