What DHS Has Actually Done
On August 6, 2026, DHS/USCIS submitted a proposed regulatory action to the White House Office of Information and Regulatory Affairs (OIRA) entitled:
“Eliminating the Discretionary 60-day Grace Period.”
The proposal is identified as RIN 1615-AD22 and is formally classified by the federal government as a Proposed Rule.
OIRA concluded its review on August 27, 2026, with the notation “Consistent with Change.” The OIRA record presently lists no legal deadline and no Federal Register publication date.
Completion of OIRA review is an important step in the federal regulatory process, but it does not mean that the regulation has changed. It clears the proposal to move forward in the rulemaking process.
Most importantly, OIRA's publicly available record does not contain the actual proposed amendment to the Code of Federal Regulations.
That distinction matters.
What the Current 60-Day Rule Actually Says
The existing rule appears at 8 C.F.R. § 214.1(l)(2).
Under the regulation currently in effect, a person admitted or otherwise provided status in:
E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification
— as well as qualifying dependents — is not considered to have failed to maintain nonimmigrant status solely because the employment underlying the classification ended, for up to 60 consecutive days or until the end of the worker's authorized validity period, whichever occurs first.
The regulation also makes clear that the grace period is available only once during each authorized validity period and that DHS may shorten or eliminate the period as an exercise of discretion in an individual case.
Unless separately authorized to work, the worker generally may not work during the grace period.
That means the frequently used phrase “60-day grace period” is somewhat simplified. The regulation does not guarantee every worker exactly 60 days.
It provides protection for up to 60 days, subject to the worker's remaining authorized validity period and DHS discretion.
Why DHS Created the Grace Period in the First Place
The current rule dates to a major DHS regulation published in November 2016 and effective January 17, 2017.
In establishing the grace period, DHS explained that it was intended to enhance job portability, stability, and flexibility for highly skilled nonimmigrant workers.
The Department specifically recognized that workers may unexpectedly lose employment before the expiration of their approved nonimmigrant validity period. DHS stated that the grace period could give affected workers time to pursue new employment, seek another immigration status, or prepare to depart the United States.
The final 2016 rule expressly extended the protection to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classifications.
That history is important because the grace period was not merely an informal USCIS policy. It was established through notice-and-comment rulemaking and incorporated into the federal regulations.
Why the Rule Is Particularly Important for H-1B Workers
For an H-1B professional who unexpectedly loses employment, the 60-day period can provide crucial time for a new employer to prepare and file an H-1B petition.
Federal law and DHS regulations contain separate H-1B portability provisions that can permit an eligible H-1B worker to begin employment with a new H-1B employer once a qualifying, nonfrivolous H-1B petition has been properly filed, rather than waiting for USCIS to approve the petition.
When DHS created the current grace period, it specifically explained that the rule could allow qualifying workers whose previous employment ended to remain in the United States long enough for a new employer to file an appropriate petition and request an extension of stay.
The grace period can therefore serve as an important bridge between the termination of one job and the filing of another immigration benefit request.
What Would Elimination of the Grace Period Mean?
This is where caution is particularly important.
The title of the pending regulatory action strongly indicates that DHS intends to eliminate the discretionary 60-day grace period. What DHS has not yet publicly released, however, is the proposed regulatory language explaining precisely how it intends to accomplish that objective.
Until that text is published, it would be premature to state categorically that every H-1B worker who loses a job would immediately become unlawfully present, would automatically have to leave the United States the same day, or would be unable to pursue another immigration option.
Those are separate legal questions.
Nonimmigrant status, authorized stay, employment authorization, and unlawful presence are related but legally distinct concepts.
The final regulatory language will be especially important in determining how DHS intends the proposal to interact with H-1B portability, extension-of-stay provisions, change-of-status requests, discretionary late filings, existing I-94 validity periods, and derivative family members.
For that reason, workers and employers should be cautious about reports already describing the consequences of the proposal as settled law.
They are not.
Dependents Could Also Be Important
The current regulation expressly includes the dependents of workers covered by § 214.1(l)(2).
Accordingly, any amendment to that provision could potentially have consequences not only for an H-1B, L-1, O-1, TN, E-1, E-2, E-3, or H-1B1 principal worker, but also for family members maintaining derivative status.
Exactly how DHS proposes to address dependents cannot be determined until the agency publishes the proposed regulatory language.
The Current Rule Is Still the Law
This is the most important practical point for workers and employers:
The 60-day grace period remains in effect.
The current eCFR, updated through September 2, 2026, continues to contain the 60-day provision at 8 C.F.R. § 214.1(l)(2).
An OIRA review does not itself amend the Code of Federal Regulations.
Likewise, the publication of a proposed rule would not ordinarily mean that the existing grace period disappears on the publication date. DHS would still need to complete the applicable rulemaking process and establish when any final regulatory amendment becomes effective.
Therefore, workers presently experiencing a layoff should not assume that the existing 60-day provision has suddenly disappeared.
At the same time, because the regulatory landscape may change, individuals facing employment termination should evaluate their options promptly rather than waiting until the end of the grace period.
What Happens Next?
The next major event to watch is publication of the DHS proposal in the Federal Register.
That document should provide the information that is presently missing: the exact language DHS proposes to change, the agency's stated reasons for the change, the classifications affected, DHS's analysis of the consequences of the proposal, instructions for submitting public comments, and the deadline for those comments.
Contrary to some reports, there is not yet an officially announced “30- to 60-day comment period” for this particular proposal.
The actual comment deadline should be determined from the Federal Register notice once it is published.
Following the notice-and-comment process, DHS could issue a final rule, revise the proposal, withdraw it, or take other action consistent with applicable federal administrative law.
There is presently no legal deadline listed by OIRA requiring DHS to complete this rulemaking by a particular date.
What Workers and Employers Should Be Doing Now
There is no reason for an H-1B or other affected worker to panic based solely on the OIRA announcement. There is, however, good reason to pay attention.
Workers who are presently in employer-dependent nonimmigrant classifications should maintain copies of their approval notices, Forms I-94, recent pay records, employment agreements and termination documentation. Anyone facing an actual or potential job loss should obtain individualized immigration advice promptly because the available strategies can depend heavily on the person's classification, I-94 expiration date, prior immigration history, prospective employer, immigrant petition history, spouse's status and other circumstances.
Employers hiring H-1B workers who have recently experienced a termination should likewise pay careful attention to filing dates and eligibility for H-1B portability.
The practical lesson is not that every worker must immediately leave the United States.
The practical lesson is that the government is actively reconsidering a regulatory protection that has existed since January 2017, and affected workers should become more proactive about immigration planning if the proposal moves forward.
Bottom Line
DHS is pursuing a significant regulatory change.
The official federal record confirms that RIN 1615-AD22, “Eliminating the Discretionary 60-day Grace Period,” completed OIRA review on August 27, 2026.
But that is where the confirmed development currently ends.
The proposed regulatory language has not yet established what will happen on the day employment ends, how the proposal will interact with existing H-1B portability protections, what will happen to derivative family members, what transition rules DHS may provide, or when any eventual change would become effective.
For now, 8 C.F.R. § 214.1(l)(2) remains in effect.
Once DHS publishes the proposed rule in the Federal Register, immigration practitioners, employers, and foreign workers will finally be able to evaluate the actual language rather than predictions about what the rule might contain.
Official Federal Sources
Office of Information and Regulatory Affairs (OIRA), Reginfo.gov — RIN 1615-AD22: Official federal regulatory-review record identifying the action as “Eliminating the Discretionary 60-day Grace Period,” its status as a proposed rule, and the August 27, 2026 conclusion of OIRA review.
8 C.F.R. § 214.1(l)(2), Electronic Code of Federal Regulations: Current regulatory language governing the up-to-60-day period following cessation of qualifying employment.
81 Fed. Reg. 82398 (Nov. 18, 2016), Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers: DHS final rule establishing the 60-day grace period, effective January 17, 2017.
USCIS — Options for Nonimmigrant Workers Following Termination of Employment: USCIS guidance addressing immigration options available following voluntary or involuntary termination. USCIS has explained that the grace period may allow workers to seek new employment or pursue another qualifying immigration status.