DHS proposes ending the 60-day grace period: laid-off H-1B workers could be out of status the next day
A proposal published Sept. 11 would eliminate the grace period of up to 60 days for E, H-1B, H-1B1, L-1, O-1 and TN workers and their dependents after employment ends. Status would lapse the day after work stops. Comments are due Nov. 10; the 60 days still apply today.
Key points
- Now: this is only a proposal; the current 60-day grace period remains in effect.
- Scale: DHS says an average of 65,752 principal workers a year lost or changed jobs in FY2021–FY2025, 99% of them on H-1B, with about 208,000 dependents a year.
- Actual use: about 3,795 a year, or 5.77%, had a new employer file Form I-129 within the grace period; another 1.70% filed Form I-539 to extend or change status.
- Context: tech companies cut 128,536 jobs in 2026 through Sept. 10, already more than in all of 2025.
What DHS proposes
The grace period comes from DHS’s 2016 “AC21” final rule, in effect since Jan. 17, 2017, and codified at 8 CFR 214.1(l)(2). Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status whose employment ends before their authorized stay expires may be considered to maintain status for up to 60 days (or until the I-94 expires, if sooner) to find a new employer, change status or prepare to leave.
The proposal published in the Federal Register on Sept. 11 (91 FR 57807; docket USCIS-2026-0364) would delete that provision. A worker would be considered out of status the day after employment ends. DHS argues that the grace period decouples lawful status from the employment that supports it, contrary to the design of the INA, and that adjudicators potentially had to assess it in more than 1.9 million filings from FY2018 through May 20, 2026. The proposal acknowledges that affected workers may have bought homes and paid taxes in their communities, but concludes the grace period’s harms outweigh its benefits.
Who would be affected
The I-539 figure is the five-year total of 5,596 divided by five; 99% of principal workers were on H-1B.
Source: DHS proposed rule eliminating the 60-day grace period (91 FR 57807). Chart by Hibee.
| Item | Value |
|---|---|
| Principal workers who lost or changed jobs | 65,752 |
| New employer filed I-129 within the grace period | 3,795 |
| Filed I-539 within the grace period | 1,119 |
DHS data show an average of 65,752 principal workers in these categories lost or changed jobs each year from FY2021 to FY2025 — 328,758 over five years — and 99% were on H-1B. Their dependents averaged about 208,000 a year, or about 1.04 million over five years. Of the workers, 5.77% had a new employer file Form I-129 within the grace period, about 3,795 a year, and 1.70% filed Form I-539 to extend or change status.
Critics note that the proposal does not quantify the cost to families forced to leave, or how much adjudication work DHS would actually save. The advocacy group FWD.us estimates there are about 730,000 H-1B workers and 550,000 dependents in the U.S.
Source: Layoffs.fyi, as compiled by NerdWallet, KRON and Second Talent. Chart by Hibee.
| Item | Value |
|---|---|
| 2024 | 152,922 |
| 2025 | 122,606 |
| 2026 through Sept. 10 | 128,536 |
The proposal arrives amid heavy tech layoffs. According to Layoffs.fyi, tech companies cut 128,536 jobs in 2026 through Sept. 10, more than the 122,606 cut in all of 2025.
What it means for you
- The 60-day grace period still applies today; you can use it if you are laid off.
- Once a new employer files an H-1B change-of-employer petition, you can usually start working for that employer; file as early as possible within the grace period.
- Dependents in H-4 or other derivative status follow the principal; plan for your spouse’s work and your children’s schooling as well.
- You can comment on docket USCIS-2026-0364 at regulations.gov until Nov. 10. DHS may keep, change or drop the proposal; nothing takes effect until a final rule is published.
Timeline
- AC21 final rule creates the grace period
- Grace period takes effect
- Proposal sent to the Office of Management and Budget for review
- Proposal published in the Federal Register; 60-day comment period opens
- Comment deadline
Sources
Wondering what this means for your case?
Hibee’s team can assess it against your status, timeline and employer.
This article reflects public information as of Oct. 2, 2026. It is for general information only and is not legal advice. Hibee is not a law firm; for your specific case, rely on the latest official guidance and a licensed attorney.
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