Sunita Somvanshi
The Department of Homeland Security is proposing to eliminate a discretionary grace period that currently allows foreign workers to remain in the U.S. for up to 60 days after their job ends without violating their immigration status. This proposed change could affect hundreds of thousands of skilled workers on employment-based temporary visas.
Here’s what the current regulation allows. Under current rules, if you’re on an H-1B visa and your employer lets you go, regulations provide an up-to-60-day discretionary grace period. During this window, you generally are not considered to have failed to maintain status. That grace period exists so workers have time to find a new job, arrange transfer to a different visa category, or arrange departure. It’s a practical tool that prevents immediate legal status violation when employment ends unexpectedly.
The proposal would remove the regulatory availability of the up-to-60-day discretionary grace period entirely. If this becomes rule, the discretionary option would no longer exist for immigration officers to apply.
This affects more than just H-1B workers. The proposal covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications. For context, H-1B workers are employed in diverse occupations across industries requiring specialized skills. The visa categories affected represent a significant portion of employment-based temporary immigration into the United States.
The actual proposal document indicates it seeks to remove availability of the discretionary grace period for all affected categories. Currently, immigration officers have discretion to allow the grace period. The proposal would remove that discretionary option.
Important: this is still a proposed rule. DHS submitted it for public comment, meaning there will be a comment period where workers, employers, immigration advocates, and others can weigh in. The proposal must go through formal rulemaking under the Administrative Procedure Act. During the rulemaking process, the current rule remains in effect. A proposed rule does not become law until the agency publishes a Final Rule and establishes an effective date.
If this proposal eventually becomes a final rule, it would create pressure on workers to secure new employment quickly after job separation or face potential status violations. For employers, it means they would lose the discretionary tool for orderly transitions. Workers who lose jobs would face urgent decisions about securing new sponsorship or departing the country.
Immigration lawyers and employers have noted concerns about the proposal. For workers currently on employment-based visas, the proposal itself is worth monitoring if your visa status or employment depends on these categories.
For now, the discretionary grace period remains available. Workers should not make decisions assuming it’s going away immediately.
