Department of Homeland Security Released a proposed rule which would eliminate the 60-day grace period after U.S. employment ends. 

On September 10, 2026, the Department of Homeland Security released a proposed rule which would eliminate the 60-day grace period for certain nonimmigrant workers after their employment in the United States ends.

The formal proposal was formally published in the Federal Register on September 11, 2026.

These changes will affect foreign nationals holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN visa holders and their dependents.

The Significance of Grace Periods

Grace periods were enacted in 2017 by the Department of Homeland Security in order to give workers up to 60 days after termination, layoff, or a resignation 60 days to find new employment, apply to change status or prepare to depart the United States.  The elimination of the 60-day grace period will require workers to anticipate termination of employment with plans for immediate departure, or alternately, arrange in advance to file changes of status to visitor or other nonimmigrant visa classification to assure that they do not fall out of status.

The removal of the 60-day grace period is likely to create uncertainty both for foreign nationals and U.S. employers concerned about the status of their nonimmigrant populations.  In 2017, when the 60-day grace period was enacted, there was much relief in the international business community that individuals were given the time they needed for future planning, whether to secure departure plans or alter employment in the United States.  This cushion will be removed if the Final Rule goes into effect. 

What Employers Should Do

Employers with nonimmigrant visa holder populations should consider the effect of terminations for foreign nationals holding nonimmigrant visas, plan for reviewing offboarding protocols and assure that immigration counsel is consulted early in the process to plan for any reductions in force.  Companies are also welcome to comment on the new rules to be published in November. A link for comment may be found here: 2026-18631.pdf.

Breaking News Regarding Limiting Foreign Students’ Stay in the U.S. Blocked by Federal Court Judge

As this alert was being written on September 14^th, the eve of implementing a change in student and exchange visitor regulations to void the duration of status rules applied to F-1 and J-1 visitors, U.S. District Court Judge for the District of Massachusetts, Judge F. Dennis Saylor found that the Department of Homeland Security (DHS) failed to show a rational connection between the rule and its objectives.  He also stated that the rule likely violated the Administrative Procedure Act, citing the potential for foreign students and exchange visitors to be deterred from enrolling in universities and educational institutions in the United States.  Further, he criticized the administration’s national security arguments as ‘absurd’ and challenged the rule’s true purpose, suggesting that it had undisclosed goals, including controlling America’s educational institutions.

The proposed rule would have permitted students to remain in the United States for a period of four years only.  Extensions beyond the maximum period were to be granted only with permission from DHS; limited stays were to be introduced for international journalists and many other restrictions were included.  We expect the administration to appeal the federal court decision. For the moment, F-1, J-1 and I visa holders will continue to be admitted to the United States with a ‘duration of status’ notation on their entry documents.  

The distinction between implementing a formal end date and retaining the ‘duration of status’ expiration date has tremendous implications for determinations whether visa holders in this category will be deemed to be out of status and accrue unlawful presence in the United States, ultimately making them deportable if they violate status for specific terms of stay per the 3/10 year bars to reenter the United States. 

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The Business & Corporate Immigration practice at Tarter Krinsky & Drogin will continue to follow this update closely. If you have any questions or would like to discuss, please reach out to a member of our team.