DHS Wants to End the 60-Day Grace Period. Comments Close November 10.

On September 11, 2026, DHS published a notice of proposed rulemaking that would remove 8 CFR 214.1(l)(2), the rule that lets E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN workers and their dependents remain in the United States for up to 60 days after their employment ends without being treated as having failed to maintain status. See 91 FR 57807 (Sept. 11, 2026), DHS Docket No. USCIS-2026-0364, RIN 1615-AD22. Written comments are due on or before November 10, 2026.

Status matters here, so label it precisely: this is proposed. It is not in effect. Nothing about your current separations changes today. What changes today is your comment window, and the assumption baked into every separation checklist you have.

What the rule actually removes

The current text is short. Under 8 CFR 214.1(l)(2), a worker in one of the listed classifications "shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period."

DHS proposes to delete that paragraph. Its stated reason is to restore "a direct relationship between an alien's nonimmigrant status and the specific employment or activity that formed the basis of admission," and to relieve the adjudication burden of confirming employment end dates. The preamble notes that USCIS reviewed more than 1.9 million petitions and applications touching this issue between October 1, 2017 and May 20, 2026.

Two things are not being removed. The 10 day cushion at 8 CFR 214.1(l)(1), which allows up to 10 days before and after the petition validity period for E-1, E-2, E-3, H-1B, L-1 and TN admissions, is a different provision and is not part of this proposal. Nor did DHS propose to change the statutory portability provision at 8 U.S.C. 1184(n). More on that silence below.

The practical effect: the termination date becomes the status date

Today, a laid off H-1B engineer has a defined runway. A new employer can be found, a change of employer petition can be filed, a change to B-2 or F-1 can be requested, or the family can wind down a household and depart. Sixty days is not generous, but it is plannable, and your HR calendar treats it as a given.

Delete the paragraph and the runway disappears. Status would end with the qualifying employment. That converts a routine human resources decision into an immigration event with same day consequences for the worker, the spouse on an E, H-4, L-2 or O-3 dependent status, and any child in school on that dependent status. It also puts pressure on obligations that already sit with you: an H-1B employer that terminates a worker before the end of the authorized period remains responsible for the reasonable cost of return transportation under 8 CFR 214.2(h)(4)(iii)(E), and the O-1 analogue sits at 8 CFR 214.2(o)(16).

The quiet casualty: compelling circumstances employment authorization

The proposal also makes a conforming revision to 8 CFR 204.5(p)(1)(i), the compelling circumstances employment authorization provision. That paragraph conditions an initial request on the fact that "the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status," and the regulation currently reaches grace periods through its cross reference to 8 CFR 214.1(l).

This is the population that most needs the runway: workers with an approved I-140 whose priority date is not current, who cannot simply move to a competitor without restarting a decade of queue position. Under the current framework, a worker terminated on a Friday can assemble a compelling circumstances filing over the following weeks. Under the proposal, the filing window closes with the last day of employment. For Indian and Chinese nationals in EB-2 and EB-3, that is not a technical adjustment. It is the difference between a filing and a departure.

What DHS did not address, and why that is your comment

The NPRM does not discuss H-1B portability under 8 U.S.C. 1184(n), and it does not discuss the 10 day provision. Portability is statutory and survives the deletion of a regulation, but its operation depends on when the new petition is filed relative to the worker's period of authorized stay. An agency that removes a regulation without addressing how the remaining statutory scheme functions has left a gap, and under Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983), failing to consider an important aspect of the problem is the classic arbitrary and capricious defect.

The economic analysis is the other opening. DHS estimates roughly 3,795 beneficiaries may incur lost income costs, and prices individual hearing related opportunity and travel costs at $204.43 to $300.53 per person. If your company's own separation data, relocation spend, or replacement hiring cost tells a different story, that is the single most useful thing you can put in the docket. Agencies are required to respond to significant comments supported by data. Sentiment is not data.

What to do

1. Pull your current roster of sponsored nonimmigrants in E, H-1B, H-1B1, L-1, O-1 and TN classifications, with dependents, and tag anyone whose validity period runs past the likely effective date of a final rule.

2. Rewrite the separation checklist so immigration counsel reviews the termination date before it is communicated, not after. Under this proposal the date on the letter is the operative legal fact.

3. Decide your default now on working notice versus pay in lieu of notice. A notice period that keeps the employment relationship intact preserves filing time; a lump sum after a same day exit does not.

4. Inventory approved I-140s held by employees whose priority dates are not current. That list is your compelling circumstances population and your highest exposure under the conforming change to 8 CFR 204.5(p)(1)(i).

5. File a comment on or before November 10, 2026 at regulations.gov under DHS Docket No. USCIS-2026-0364, with your own figures on separations, rehiring cost and business disruption. Comments are public; coordinate with counsel on what you attribute.

6. Do not change policy yet, and do not tell employees the grace period is gone. It is not. Premature guidance creates its own problems, including selection decisions that begin to track citizenship status or national origin, which is separate exposure under 8 U.S.C. 1324b.