Possible Elimination of the 60-Day Grace Period (Part 3)
Today, a worker in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status whose employment ends before their petition expires may remain up to 60 consecutive days — or until the end of their authorized validity period, whichever is shorter — without being treated as having violated status. That's 8 CFR 214.1(l)(2), in place since 2017. Dependents are covered as well.
The window makes an orderly transition possible: file a change of employer petition with a new employer, request a change of status to another classification, or file for adjustment.
On September 11, 2026, DHS proposed removing that paragraph, describing the change as restoring the direct link between status and the employment that supports it. The proposed rule, Eliminating the Discretionary 60-Day Grace Period (Docket No. USCIS-2026-0364), is published in the Federal Register.
If the grace period is eliminated, most workers will have to leave the U.S. even if they have a new offer of employment. Those who do not have valid visas will have to apply for new ones.
However, before the grace period existed, a laid-off worker whose status had already lapsed could still ask USCIS to excuse the late filing of a change of employer or change of status petition. That authority sits at 8 CFR 214.1(c)(4) for an extension or amendment of stay and 8 CFR 248.1(c) for a change of status, and it turns on showing that the delay resulted from extraordinary circumstances beyond the control of the applicant or petitioner, with USCIS finding the delay commensurate with the circumstances.
The worker must also not have otherwise violated status and must remain a bona fide nonimmigrant. Relief is discretionary, but an involuntary termination was often considered by USCIS as an “extraordinary circumstance.” If the grace period is repealed, we hope that this practice will return. eCFR.
Employers have room to reduce the risk for their foreign workers. Give as much advance notice of termination as the business allows — every extra day is a day the worker can spend looking for a new job or considering alternatives.
Where the problem is cost, consider an amended petition reflecting reduced hours instead of a separation. A move from full-time to part-time is a material change and requires an amended I-129 with a corresponding LCA, but it preserves the employment relationship, and with it the employee's status.
Nothing has changed yet. The current rule stays in place until a final rule issues, and comments are open through November 10, 2026, on the docket at regulations.gov. Stay tuned.
