The Department of Homeland Security is proposing to eliminate a rule allowing certain employment-based visa holders up to 60 days to remain in the United States after their jobs end, arguing the change could reduce administrative burdens and create additional opportunities for U.S. workers.
By yourNEWS Media Newsroom.
The Department of Homeland Security proposed a major change to employment-based immigration rules Thursday that would require many temporary foreign workers to leave the United States when their qualifying employment ends unless they have another legal basis to remain.
The proposed rule, signed by Homeland Security Secretary Markwayne Mullin, would eliminate the discretionary grace period of up to 60 days currently available to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classifications, as well as their qualifying dependents. It is scheduled for publication in the Federal Register on Friday, Sept. 11.
Under existing regulations, workers in those categories generally may remain in lawful nonimmigrant status for as long as 60 days after their employment ends, or until the end of their authorized validity period, whichever comes first. That window can allow workers to seek another sponsoring employer, pursue a change or extension of status, or make arrangements to leave the country.
DHS now argues that the grace period improperly separates a worker’s immigration status from the employment on which that status was based.
“DHS now believes that once the alien is no longer fulfilling the very specific conditions under which he or she was admitted or otherwise provided status, such status, as well as the authorization to remain in the United States, should definitively cease and the impacted alien should immediately depart the United States (unless otherwise authorized to lawfully remain in the United States),” Mullin wrote.
“This is generally consistent with the requirements for aliens admitted or otherwise provided status in other nonimmigrant categories when the alien fails to fulfill the very specific conditions under which he or she was admitted or otherwise provided status.”
The proposal would not automatically prevent a worker from obtaining another lawful immigration status. DHS said affected workers could still seek readmission after obtaining qualifying employment and the necessary approvals, while eligible H-1B workers may under existing portability rules begin employment with a new employer after a qualifying Form I-129 petition is filed. Other covered visa categories generally require approval of the new petition before employment can begin.
DHS said eliminating the grace period could also reduce the administrative workload associated with determining whether an individual remained in lawful status after employment ended.
The department further argues that the change could open some positions to American workers.
DHS estimated that 2,886 employers in fiscal year 2025 submitted change-of-employer petitions for approximately 5,178 workers in the affected visa categories whose previous petitions had been withdrawn and who potentially used the 60-day period. About 99% of the workers represented in that analysis were in H-1B status.
Because DHS does not directly track every person who uses the grace period, the department said those figures are a proxy rather than a complete count of affected workers.
The department said employers unable to immediately retain workers under the proposed system could respond by hiring qualified U.S. workers or filing new petitions for foreign employees.
DHS said it presumes affected companies “will either offer the same jobs to equally qualified U.S. workers or go through the I-129 petition process depending on their workforce requirement.”
“In some situations, aliens who have gone abroad can be readmitted for employment if the I-129 petition filed on their behalf is approved and the alien is admissible,” the proposal states. “Even though these petitioners would witness a temporary loss of productivity, they might be able to gain U.S. workers for the positions that were generally offered to … nonimmigrants during the possible grace period.”
The 60-day provision was originally created in part to increase employment mobility for highly skilled temporary workers who suddenly lost or left their jobs, allowing them time to find another employer without immediately falling out of status. DHS now says the costs and administrative consequences of that policy outweigh its benefits.
If finalized as written, the proposal would make the end of qualifying employment significantly more consequential for temporary visa holders. DHS states that an affected worker and qualifying dependents generally would need to depart on the day employment ceased to avoid the consequences associated with failing to maintain immigration status, unless another legal authorization allowed them to remain.
The change is not yet in effect.
The proposal will be formally available through the Federal Register on Sept. 11, after which the public will have 60 days to submit comments. DHS and U.S. Citizenship and Immigration Services can consider those submissions before deciding whether to issue a final rule, modify the proposal or leave the current policy in place.
Until that rulemaking process is completed, the existing discretionary grace period of up to 60 days remains in place.
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