A proposed rule that would eliminate the 60-day grace period for nonimmigrant workers whose employment ends is now under review at the White House Office of Management and Budget, the last stop before a rule can be published for public comment. The rule, tracked under RIN 1615-AD22, would affect E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers, along with their dependents.
The grace period at issue has been in place since 2017. It allows affected workers to remain in the United States for up to 60 days after their job ends, or until their I-94 expiration date, whichever comes first. During that window, someone can search for a new employer in the same visa category, file to change status, or make arrangements to depart without being treated as having fallen out of status. It applies whether the job loss was voluntary or involuntary, and it can be used once during each petition validity period. DHS has always had the discretion to shorten or eliminate the grace period case by case, but has rarely exercised that authority. This proposal would remove the grace period as a matter of policy rather than leaving it to individual discretion.
Nothing has changed yet. This is a proposed rule still working through federal review, and it has not been published in the Federal Register. Once it clears OMB review, which can take several months or longer, it will be published for a public comment period before any final rule takes effect. Still, the direction is worth taking seriously. Without a grace period, a worker who loses a job would need to have a new employer, a status change, or travel arrangements in place essentially immediately, since there would no longer be a built-in window to sort things out after the fact. That window matters for more than just the worker filing paperwork; it’s often what gives a family time to handle a spouse’s job, a child’s school year, or the logistics of an international move on short notice.
What This Would Mean If Someone Falls Out of Status
The consequences of losing this cushion go beyond just having less time to act. Once someone falls out of status, getting back into status, even within the very same visa category they held before, generally can’t be fixed with an in-country filing. It typically requires leaving the United States and applying fresh through a U.S. embassy or consulate abroad. And the longer someone remains without status, the more serious the exposure becomes: more than 180 days of unlawful presence can trigger a three- or ten-year bar on returning to the U.S., and in some cases removal proceedings or detention become a real possibility.
What Employers Should Consider Now
For employers, this raises the stakes around how layoffs and terminations are handled and timed. Where it’s practical to do so, giving a sponsored employee advance notice of an upcoming termination, rather than an immediate one, can make a real difference in how much runway that person has to find a new sponsor or sort out their options. It’s also worth remembering an obligation that already exists for H-1B workers: when an employer initiates the termination, it’s generally required to offer to cover the reasonable cost of the employee’s return transportation abroad, a requirement that becomes more consequential if departure ends up being the only realistic option on a compressed timeline. Employers with a meaningful population of sponsored employees should take this as a good moment to review termination policies and practices with immigration counsel, rather than waiting until the rule is finalized to figure out how it changes things.
For workers, this means the margin for error after a job loss, already narrow given recent enforcement trends, could shrink further. Anyone in an affected category who anticipates a job change or employment gap should talk with an immigration attorney now about contingency options, rather than waiting to see whether or when this rule is finalized.
FAQs
Has the grace period already been eliminated?
No. As of now, this is only a proposed rule under federal review. It has not been published for public comment or finalized, and the existing grace period remains in place.
Which visa categories would this affect?
The proposal covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrants, along with their dependents.
How long does the current grace period last?
Up to 60 consecutive days, or until the individual’s I-94 expires, whichever comes first. It can be used once per petition validity period.
When could this rule take effect?
There’s no set timeline. The rule still needs to clear OMB review, be published for public comment, and go through a final rulemaking process, which can take several months or longer.
What should affected workers do in the meantime?
Anyone anticipating a job change should speak with an immigration attorney about contingency planning now, rather than waiting for the rule to be finalized.
Do employers already have any obligations when terminating an H-1B worker?
Yes. In an employer-initiated termination, the employer is generally required to offer to pay the reasonable cost of the worker’s return transportation abroad, a rule that predates this proposal and remains unaffected by it.
If you or your family members have questions about how these immigration matters may affect you, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by visiting our website at www.visaserve.com for more information.