On September 11, 2026, the Department of Homeland Security (DHS) published a proposed rule that would eliminate the discretionary grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers whose qualifying employment ends before their authorized stay expires. Dependents would lose the related protection. The proposal would require affected workers and their dependents to depart immediately after the qualifying employment or activity ends, unless another lawful basis permits them to remain.
DHS created the grace period in a 2016 final rule that took effect on January 17, 2017. The rule permits a visa holder in the established category to remain in the U.S. up to 60 consecutive days, or the remaining petition validity period if shorter, after qualifying employment ends.
DHS said the grace period would help workers pursue new employment and help employers arrange changes in employment. DHS also contemplated timely requests to extend or change status.
In its 2016 response to comments, DHS said USCIS adjudicators would assess the totality of the circumstances. It identified status violations, unauthorized employment during the grace period, fraud or national security concerns, and criminal convictions as examples that could support shortening or refusing the period. DHS added that many cases might receive the full 60-day period.
What the proposal means
DHS now says the grace period is inconsistent with the Immigration and Nationality Act because it separates lawful status from the employment that supported admission. DHS also says officers spend time deciding whether the period applies, when it began, and whether adverse facts justify a shorter period or refusal.
The proposal would narrow the options available after a termination or other cessation of employment. A worker who needs time to find a new sponsor or file another status request could face immediate status loss upon the effective date when employment ends and may be issued a Notice to Appear (NTA) before an immigration judge at a removal (deportation) hearing. They may need to pursue the next step from outside the United States unless another lawful basis to remain in status is available.
What employers should consider doing now
The proposal is not yet effective. Employers should continue to follow the current regulation while reviewing how immediate status loss could affect sponsored workers, recruiting, and planned employer changes.
Comments are due on or before November 10, 2026. They must identify DHS Docket No. USCIS-2026-0364 and be submitted through the Federale Rulemaking Portal at https://www.regulations.gov. Employers affected by the proposal may wish to consider whether to provide concrete evidence about hiring delays, disrupted projects, relocation costs, family effects, and workforce planning. For advice about a specific termination, change of employer, status filing, or assistance in preparing a comment, contact your assigned Vialto Law attorney or the authors.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Angelo A. Paparelli
Partner, U.S Immigration
Stephanie Robayo
Manager
Julie Guzman
Senior Associate
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