Reviewed by: Beth Persky
The 60-day grace period for nonimmigrant workers remains in force today. DHS has submitted a proposed rule that would eliminate it, but that proposal is at an early stage of review, its text has not been made public, and no final rule or effective date exists.
The provision at stake sits at 8 CFR 214.1(l)(2). It covers workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classification, along with their dependents. Much of the coverage has framed this as an H-1B story. The regulation is broader than that, and anyone in one of the covered classifications, or employing people in them, has reason to follow it.
Takeaways
- Nothing has changed. The proposal is under review, its text is not public, and the current grace period remains in force.
- The rule is not H-1B specific. It covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN, plus dependents. Separate H-2A and H-2B grace-period rules exist and are not part of this provision.
- It is 60 days or the end of authorized validity, whichever is shorter, once per authorized validity period, and only where the qualifying employment ends before the validity period does. It is not a guaranteed 60 days.
- It is not work authorization.
- The status of the proposal is checkable. RIN 1615-AD22 on reginfo.gov, and the Federal Register for anything published.
Which classifications the current rule actually covers
The grace period was established through a DHS rule that took effect in January 2017. It was not written for a single visa category.
Under 8 CFR 214.1(l)(2), a worker in one of the covered classifications shall not be considered to have failed to maintain nonimmigrant status solely because the employment on which the classification was based has ended, for a limited period. The covered classifications are E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN, and the provision extends to the worker’s dependents.
The provision addresses one specific situation: the qualifying employment ends before the worker’s authorized validity period does. It applies the same way whether the worker is an H-1B employee laid off mid-validity, an E-2 employee whose position with a treaty enterprise ends before their authorized stay expires, an L-1 transferee whose employment ends mid-assignment, or an O-1 or TN worker in the same position. If the authorized validity period itself expires, this provision provides no additional time; a separate rule at 8 CFR 214.1(l)(1) governs short admission periods before and after a petition validity period for some classifications.
Note also that this article addresses only 8 CFR 214.1(l)(2). H-2A and H-2B workers have their own, separate grace-period provisions at 8 CFR 214.2(h), added by a rule effective January 17, 2025, and those are not the subject of the proposal discussed here.
What the grace period provides today
The period runs up to 60 consecutive calendar days, or until the end of the existing authorized validity period, whichever is shorter.
That second limb matters. A worker whose authorized stay has three weeks left does not receive 60 days. They receive three weeks. The grace period does not extend a period of authorized stay; it works inside one.
Three more features of the current rule deserve attention:
- It is available once per authorized validity period. The regulation allows the grace period “once during each authorized validity period.” A worker who has already used it within the same validity period cannot count on a second one.
- It is already discretionary. The regulation states that DHS may eliminate or shorten the 60-day period as a matter of discretion in a given case. The pending proposal, titled “Eliminating the Discretionary 60-day Grace Period,” is directed at this discretionary provision. What the proposed text would actually do is not known until it is published.
- It is not work authorization. Under the regulation, the worker may not work during the period unless otherwise authorized under 8 CFR 274a.12.
The period begins when the employment on which the classification was based ceases. The regulation does not define cessation for situations involving severance, garden leave, payroll continuation, or accrued leave, so the operative date is fact-specific. Anyone whose separation involves those arrangements should have the date confirmed by an attorney rather than assuming a particular start point.
Important:
The grace period is not work authorization. It is a period during which a person is treated as not having failed to maintain status while they arrange next steps, such as a new petition, an application for a change of status, or departure. Working during it, without separate authorization, is not permitted by the provision.
Where the proposal actually stands
According to the Office of Information and Regulatory Affairs (OIRA) regulatory review docket, DHS submitted a proposed rule titled Eliminating the Discretionary 60-day Grace Period, carrying Regulatory Identification Number 1615-AD22, on August 6, 2026. It is currently listed as a proposed rule pending EO 12866 Regulatory Review.
That is an early stage. The text of the proposal has not been released, so its precise scope, any transition provisions for workers already in a grace period, and any proposed effective date are not publicly known.
If the proposal clears that review, DHS would ordinarily publish it in the Federal Register as a proposed rule with a period for public comment, and any final rule would follow, unless the agency invokes a legal exception to that process. Final text can differ from what was proposed. A proposal can also be withdrawn, delayed, or challenged in court.
Important:
No final rule has published, no final rule exists, no effective date has been announced, and 8 CFR 214.1(l)(2) remains in force. Anyone relying on the grace period today should treat the current rule as the operative one, and should not assume the current rule will still exist by the time they need it.
The current rule and the proposal, side by side
| Question | Current rule, in force today | Proposed rule, not in force |
|---|---|---|
| Status after employment ends mid-validity | Not considered to have failed to maintain status for a limited period. | The submission title indicates the discretionary grace period would be eliminated. Text not released. |
| How long | Up to 60 consecutive calendar days, or the end of the authorized validity period, whichever is shorter. | Not known. The text has not been published. |
| How often | Once during each authorized validity period. | Not known. |
| Classifications covered | E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, TN. | Not known until the text is released. |
| Dependents | Covered. | Not known. |
| Work authorization during the period | Not provided by the grace period itself. | Not applicable while the proposal is not in force. |
| Transition for workers already in a grace period | Not applicable. | Not known. This is one of the open questions. |
| Transition for workers already in a grace period | Not applicable. | Not known. This is one of the open questions. |
| Effective date | In force now. | None announced. |
| Where it stands | 8 CFR 214.1(l)(2), effective since January 17, 2017. | Per the OIRA docket, submitted August 6, 2026. Under review. |
Planning while the proposal is pending
A few practical points for anyone whose plans currently assume the grace period will be available:
- Do not plan around a benefit that is under review to be eliminated. If a job change, transfer, or restructuring is foreseeable, the safer course is to have the next filing ready before employment ends rather than counting on the 60-day window.
- File before the grace period ends, and count receipt, not mailing. A qualifying petition or application (generally Form I-129 or Form I-539) must be properly filed with USCIS, meaning received and accepted at the correct filing location, before the person’s period of treated-as-maintained status ends. USCIS has limited discretion to excuse certain late extension of stay or change of status filings where extraordinary circumstances beyond the person’s control are shown, but that is an exception to argue after the fact, not something to plan around.
- The grace period is not guaranteed even today. DHS may shorten or eliminate it as a matter of discretion in an individual case under the current regulation.
How to check the status yourself
This is a developing regulatory matter and any article about it can go out of date. You can check the primary sources directly:
- The OIRA listing. Search RIN 1615-AD22 on reginfo.gov to see whether the proposal is still under review, has cleared, or has been withdrawn.
- The Federal Register. A proposed or final rule appears there once published, together with any comment deadline and effective date.
- USCIS guidance. The agency maintains pages on options for nonimmigrant workers after employment ends.
Checking the primary source is more reliable than tracking secondary coverage.
If your status, or your company’s workforce planning, depends on how this provision applies, the answer turns on your classification and your specific dates. You can contact USA Immigration Lawyer or request a consultation. USA Immigration Lawyer is a U.S. immigration practice focused on employment-based, family-based, business, and investment immigration.
This article is general information, not legal advice; consult a licensed immigration attorney about your case.
FAQ
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- Q: Which visa categories does the proposed change reach?
- A: The current regulation covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classifications and their dependents, so all of those categories sit within the scope of a proposal directed at that provision. The text of the proposal has not been released, so its precise scope is not yet known. H-2A and H-2B workers are covered by separate grace-period provisions at 8 CFR 214.2(h).
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- Q: Has anything changed yet?
- A: No. Per the OIRA docket, the proposal was submitted for White House review on August 6, 2026. It has not been published in the Federal Register, and no final rule or effective date exists. The current grace period remains in force.
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- Q: Can I work during the grace period?
- A: The grace period itself does not provide work authorization. The regulation states that the worker may not work during the period unless otherwise authorized under 8 CFR 274a.12.
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- Q: Is the grace period always 60 days?
- A: No. It runs up to 60 days or until the end of the existing authorized validity period, whichever comes first. A worker close to the end of their authorized stay receives less than 60 days.
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- Q: Can I use the grace period more than once?
- A: The regulation allows it once during each authorized validity period. A new authorized validity period, for example after an approved extension, may create another opportunity for the grace period, but the period remains discretionary, so it is not guaranteed.
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- Q: When does the clock start?
- A: When the employment on which the classification was based ceases. The regulation does not define cessation for situations involving severance, garden leave, or payroll continuation, so anyone in one of those situations should confirm the operative date with an attorney rather than assuming it.
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- Q: Does leaving the United States affect it?
- A: The grace period is a treatment of status inside the United States, and departure raises questions the regulation does not answer on its face. Anyone considering travel during that window should confirm the consequences with an attorney before leaving.
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- Q: Does the grace period apply to my spouse and children?
- A: Dependents are covered under the current provision. How any final rule would treat dependents is not known while the text remains unpublished.
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- Q: When would a new rule take effect?
- A: That cannot be answered while the proposal is unpublished. DHS would ordinarily publish the proposed rule, take public comment, and then publish any final rule with an effective date, unless it invokes a legal exception to that process, and final text can differ from the proposal.
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- Q: Where can I check the status myself?
- A: Search RIN 1615-AD22 on reginfo.gov for the review status, and the Federal Register for anything that has been published.
