On September 11, 2026, the U.S. Department of Homeland Security (DHS) issued a proposed rule that would eliminate the discretionary 60-day grace period for certain employment-based nonimmigrant workers after their employment ends.
If the rule is finalized, affected employees would be required to leave the United States immediately after their employment ends unless they have another lawful basis to remain. The proposal is not yet in effect. DHS will accept public comments for 60 days after the proposed rule’s publication in the Federal Register.
What Would Change?
Since 2017, eligible workers in certain employment-based nonimmigrant classifications have been allowed to remain in the United States for up to 60 days after a resignation, layoff, or termination without being considered out of status.
During that period, workers may look for a new employer, change status, pursue permanent residence options, or make arrangements to depart the United States.
The proposed rule would eliminate that grace period. DHS states that workers in the affected classifications would be expected to depart the United States once the employment or activity underlying their immigration status ends unless they have another lawful basis to remain.
The proposal would apply to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrant status, as well as their dependent family members.
What Would Not Change?
The proposal would not:
- Eliminate the separate 10-day grace period available at the end of certain petition validity periods.
- Change H-1B portability rules that allow eligible H-1B workers to begin employment with a new employer upon the filing of a qualifying H-1B petition.
- Prevent foreign nationals from returning to the United States if they obtain qualifying employment and the necessary immigration approvals.
Potential Impact on Employers and Workers
For many employers and foreign national employees, the 60-day grace period provides valuable flexibility after a resignation, layoff, or termination. If the rule is finalized, that flexibility would no longer be available.
Affected employees could be considered out of status beginning the day after employment ends. They may need to leave the United States immediately, limiting their ability to remain in the country while exploring new employment opportunities or pursuing other immigration options.
The proposal could also create workforce planning and recruiting challenges. Employees who lose their jobs may need to depart the United States before a prospective employer can complete the sponsorship process, potentially delaying start dates and disrupt hiring timelines.
Affected employees could face significant immigration consequences if they remain in the United States without another lawful basis to stay, including:
- Possible placement in removal proceedings.
- Potential accrual of unlawful presence, which in certain circumstances can lead to future bars on reentry.
- Reduced ability to file a change of status or extension request because applicants generally must be maintaining valid status at the time of filing.
Impact on Dependents
Dependent family members could also be affected. Spouses and children whose status is tied to the principal employee may lose their ability to remain in the United States when the principal worker’s employment ends.
This may be particularly disruptive for work-authorized dependent spouses, including certain H-4, E, and L-2 spouses.
Employer Obligations
Employers’ existing obligations to pay reasonable return transportation costs for terminated H-1B and O-1 workers would remain unchanged. Those obligations could arise more frequently if affected employees must depart the United States immediately after termination.
What’s Next?
The proposed rule is now subject to a 60-day public comment period. Employers, industry groups, employees, and other stakeholders may submit feedback to DHS.
After the comment period closes, DHS will review the comments and issue a final rule, revise the proposal, or withdraw it.
Because this is only a proposed rule, the current 60-day grace period remains in effect. Employers that rely on foreign national talent should consider:
- Identifying employees in affected nonimmigrant classifications and assessing potential workforce impacts.
- Reviewing reduction-in-force, layoff, and termination procedures involving sponsored employees.
- Evaluating hiring and onboarding timelines for foreign national candidates who may be changing employers.
- Reviewing return transportation and relocation obligations for H-1B and O-1 workers.
- Considering whether to submit comments on the proposal’s impact on recruitment, retention, workforce mobility, and business operations.
Key Takeaway
If finalized, the proposal would mark a significant change to employment-based immigration mobility since the grace period was introduced in 2017. Eliminating the 60-day transition period would reduce flexibility for affected employees and could create additional workforce planning, recruiting, and retention challenges for employers.
Employers that sponsor foreign national workers should monitor the proposal closely and evaluate how it could affect their workforce strategy, termination practices, and future hiring plans.
For more information or assistance assessing the potential impact on your organization, please contact the Immigration Team at Alston & Bird.
If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration team.
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