The 60-Day Grace Period Rule Is Out. Comments Close November 10.

Today, September 11, 2026, the U.S. Department of Homeland Security (DHS) published its proposed rule to eliminate the 60-day discretionary grace period. Public comments are due by November 10, 2026. This is a proposed rule, not a final one. Nothing has changed yet.

What the grace period is today.

If you are in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status and your job ends before your approval notice expires, USCIS may treat you as still being in status for up to 60 days, or until your I-94 card end date if that comes first. Your spouse and children in dependent status are covered too, but only because you are. Their coverage starts and ends with yours.

Those 60 days are what give you room to line up a new employer, change to another status, or depart the U.S. without having fallen out of status on day one.

One thing that gets often overlooked is that this is a 60-day discretionary grace period, not a guarantee. USCIS can shorten it or take it away entirely, and it does not make that call in the moment. It makes it later, when there is an officer adjudicating whatever petition or application you file next. Meaning that you can spend 55 days thinking you are fine and learn otherwise months afterward. That has always been the case, and it matters how you plan even under today's rules.

What the proposal would do.

It removes the 60-day discretionary grace period provision completely.

If this rule becomes final, an individual in the above-mentioned visa classifications would be considered out of status the day after their job ends, along with their dependent family members, and would be expected to leave the country immediately unless they hold some other status or have a pending application that was filed while they were still in status.

The 10-day grace periods are different, and they are not going away.

To avoid confusion there is a separate, smaller grace period of up to 10 days before a petition approval validity start date and up to 10 days after it ends, if granted by either the U.S. Citizenship and Immigration Services (USCIS) or U.S. Customs and Border Protection (CBP). This is generally indicated on an I-94 Card attached to the bottom of a petition Approval Notice (Form I-797A), or an I-94 Card issued by CBP upon entry to the U.S. The proposed rule does not touch it.

The 10 days run from the start and end of a petition approval period, not from an individual's last day of work. For instance, if an individual is laid off 8 months into a 3-year approval, the 10-day period does nothing for the individual. DHS even mentions this directly in the proposed rule. Therefore, the 10-day grace period listed on an I-94 Card issued by either USCIS or CBP is not a fallback version of the 60-day discretionary grace period.

Practical takeaways.

For employees.

To extend or change your status, you generally must be in valid status on the day the application or petition is filed. The current discretionary 60-day grace period is what makes a filing after a loss of employment count as timely.

Without it, the deadline moves from 60 days after your last day of employment to on or before your last day.

For H-1B workers, the portability provisions still allow you to start working at a new employer as soon as a new petition is filed, without waiting for approval. That does not go away under the proposed rule. But it only helps if the petition gets filed while you are still in valid status, which now means before your employment ends. For E, L, O-1, TN, and H-1B1 workers, who generally must wait for petition approval before starting employment with a new employer, the margin is tighter.

Get advice before you give notice, and before a last day you know is coming, rather than after. Once that day passes, the options narrow sharply if this rule takes effect as written. If you are already sitting in a grace period today, that is a conversation to have this week, not in November.

For employers.

There are two key takeaways.

The first involves the timeline. If an employer is planning to let go of an employee in one of the visa categories listed above, the employee's options should be laid out before the separation date is set. This can even apply to internal transfers and organizational restructurings, not just terminations.

Second, upon the employer's termination of an H-1B or O-1 worker before their approved petition validity period ends, the employer is responsible for the reasonable cost of the employee's return transportation home. In practice that cost is rarely incurred, because the employee usually stays in the U.S. and finds a new employer to sponsor them or changes status rather than departing. DHS acknowledges in the rule that if this is finalized, employers would end up paying it more often.

If you want to weigh in on the proposed rule.

The public comment period runs through November 10, 2026. Comments can be submitted at regulations.gov, under docket number USCIS-2026-0364.

If the rule is finalized, it would not take effect immediately. Generally, after the comment period ends, the comments are reviewed and then a final rule is published. That process typically takes a few months.