What happens to your status if you are laid off on an H-1B, O-1 or L-1? Under current rules, you generally have up to 60 days to find a new sponsor, change status or leave, without being treated as out of status. On September 11, 2026, the Department of Homeland Security (DHS) published a proposal to remove that grace period, so that status would end the day after the job ends. This is a proposed rule, not a final one. The 60-day grace period remains in the regulations today, and DHS is taking public comments until November 10, 2026.
- Current rule: up to 60 consecutive days, or until the authorized validity period ends if sooner, once per validity period, at DHS discretion
- Covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN workers and their dependents
- Proposal: DHS would delete 8 CFR 214.1(l)(2) entirely (91 FR 57807, September 11, 2026)
- Status: proposed only; no effective date; nothing changes unless a final rule is published and takes effect
- Comments close November 10, 2026, at regulations.gov, docket USCIS-2026-0364
- Options today include a new H-1B petition (portability), a change of status, an adjustment of status application if your priority date is current, a compelling circumstances EAD and departure
What does the current rule say?
The grace period is in one paragraph of the regulations:
"An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period." 8 CFR 214.1(l)(2)
In plain terms, four limits apply. The period is up to 60 days, not a fixed 60. It ends sooner if your approved stay ends sooner. You get it once during each authorized validity period. You cannot work during it unless you have separate work authorization (eCFR, 8 CFR 214.1).
The grace period is also discretionary: DHS may shorten or eliminate it. According to the proposal, that decision is typically made later, when a petition or application is later filed for you, such as a request to extend your stay or change your status, after the job ends (91 FR 57807).
DHS created the grace period in a 2016 final rule, which DHS calls the AC21 final rule (81 FR 82398), effective January 17, 2017. Before that, DHS says, a worker whose job ended was generally considered out of status starting the day after the job ended (91 FR 57807).
What would the proposal change?
The proposed rule, titled "Eliminating the Discretionary 60-Day Grace Period," was published by DHS and U.S. Citizenship and Immigration Services (USCIS) on September 11, 2026, at 91 FR 57807 (DHS Docket No. USCIS-2026-0364, RIN 1615-AD22). It would make two changes to the regulations (91 FR 57807):
- Remove 8 CFR 214.1(l)(2), the 60-day grace period, and renumber the next paragraph.
- Revise 8 CFR 204.5(p)(1)(i), the eligibility rule for a compelling circumstances work permit, to drop its reference to the grace period.
DHS describes the result directly. Workers and their dependents "would be considered to be immediately failing to maintain their nonimmigrant status the day after the principal alien's employment or activity ceases" (91 FR 57807). The proposal does not touch the separate period of up to 10 days after a validity period ends, which DHS notes would not help someone whose job ends early.
DHS gives two reasons. First, it says the grace period disconnects status from the job that is the basis for it, which it views as inconsistent with the purpose for which Congress created these visa classifications. Second, it says administering the grace period is burdensome: it counted over 1.9 million petitions and applications from fiscal year 2018 through May 20, 2026, where USCIS potentially had to assess whether a grace period applied. DHS says it considered shortening the period or removing it only for some classifications, and rejected both (91 FR 57807).
DHS also acknowledges costs. It says some workers may lose income if they must leave and return, and that some may be issued a Notice to Appear, which starts removal proceedings (91 FR 57807).
Who would it affect?
Everyone the current rule covers. The proposal names the same eight classifications and their dependents.
| Classification | Today after a job ends | Under the proposal |
|---|---|---|
| H-1B and H-1B1 | Up to 60 days, at DHS discretion | Out of status the day after the job ends |
| O-1 | Up to 60 days, at DHS discretion | Out of status the day after the job ends |
| L-1 | Up to 60 days, at DHS discretion | Out of status the day after the job ends |
| TN, E-1, E-2, E-3 | Up to 60 days, at DHS discretion | Out of status the day after the job ends |
| Dependents (for example H-4, L-2, O-3) | Follow the principal's grace period | Would also lose status the day after |
Sources: 8 CFR 214.1(l)(2); 91 FR 57807. The dependent status names in the last row are our examples; the rule refers to "dependents."
F-1 students are not among the classifications the proposal covers. Their departure periods are set separately, in 8 CFR 214.2(f) (eCFR, 8 CFR 214.2).
Is the proposal final?
No. A notice of proposed rulemaking (NPRM) gives the public a chance to comment before any final rule is adopted, as the Federal Register notes for proposed rules. The proposal lists no effective date and has the Federal Register action "Notice of proposed rulemaking" (Federal Register, document 2026-18631). Until a final rule takes effect, 8 CFR 214.1(l)(2) remains in force, and the eCFR still shows it (eCFR, 8 CFR 214.1).
We cannot say whether or when a final rule will follow, or whether it will match the proposal.
How do you comment?
Anyone can comment. The notice gives these instructions (91 FR 57807):
- Go to regulations.gov and search for DHS Docket No. USCIS-2026-0364.
- Include the agency name (U.S. Citizenship and Immigration Services) and the docket number.
- Submit before midnight Eastern time at the end of November 10, 2026.
Comments sent by email or letter to DHS or USCIS officials are not considered comments on the rule. Everything you submit is posted publicly, including personal information, so you may want to limit what you share. DHS says the most useful comments point to a specific part of the rule, explain the change you want and include data. It specifically invites comments on reliance interests, meaning plans people made because the grace period exists.
What are your options after a layoff today?
The current rule still applies, so these options are available now, subject to eligibility. In practice, most of them work best when started early in the grace period. Our page on H-1B layoff options goes into more detail.
A new H-1B petition (portability). An eligible H-1B worker may start work for a new employer once that employer files a nonfrivolous H-1B petition, or on the requested start date if later. The new petition must be filed before your authorized period of stay expires, and you must not have worked without authorization (8 CFR 214.2(h)(2)(i)(H)). Our guide to AC21 job portability covers the green card side.
A change of status or extension. The regulation lets you use the grace period to apply:
"An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible." 8 CFR 214.1(l)(3)
Examples include a change to O-1 through a new employer or agent, to a dependent status through a spouse, or to student status. Timing matters: an extension generally cannot be approved for someone who "failed to maintain the previously accorded status", with limited exceptions (8 CFR 214.1(c)(4)(i)), and change of status has a matching rule (8 CFR 248.1(b)). If your record is strong, see whether the O-1 may fit better than another H-1B. O-1 workers should also read changing employers on an O-1, since the portability rule above covers only H-1B workers.
A compelling circumstances EAD. If you are the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant petition (Form I-140), your priority date is not current, and USCIS finds compelling circumstances, you may be eligible for an employment authorization document (EAD). For an initial request, you must be in E-3, H-1B, H-1B1, O-1 or L-1 status, including the grace period, when you file (8 CFR 204.5(p)). The proposal would remove the grace period from that list, so this route could become harder to reach after a layoff. A compelling circumstances EAD lets you work, but it is not a nonimmigrant status; the proposal itself notes that people who use these options may remain in the United States even if they lose their previous nonimmigrant status. Returning to H-1B or another status later generally requires a new petition, and often travel abroad for a visa.
Adjustment of status. If you have an approved or pending immigrant petition and your priority date is current for filing, you may be able to file Form I-485 during the grace period, if otherwise eligible. The proposal lists this among the actions people take during the grace period (91 FR 57807).
Departure. You can leave and seek a new visa later. If an H-1B employer dismisses you before the end of your authorized stay, the employer is liable for the reasonable cost of return transportation (8 CFR 214.2(h)(4)(iii)(E)). For O workers whose employment ends other than by voluntary resignation, the employer and the petitioner are jointly and severally liable for the reasonable cost of return transportation (8 CFR 214.2(o)(16)).
What this means in practice: today, the window is up to 60 days. If the proposal becomes final as written, DHS says status would end the day after the job ends, so there would be no window after a layoff. In our reading, that would make it important to have any new petition or application filed before the last day of work; how this would work in practice would depend on the final rule. Workers who think a layoff is possible may want to talk to an attorney before it happens. If you are early in your career or between visas, our post on what to do after losing the H-1B lottery lists other routes, including cap-exempt employers and self-petitioned green cards.
- Written notice of your last day of employment
- Your final pay statements (the proposal notes that in some cases a payroll document is the only evidence of the last day of employment)
- Your current Form I-94 record and approval notice (Form I-797)
- Any approved Form I-140 and your priority date
- Passport validity for you and your dependents
- Contact details for any prospective employer or US agent
Where to start
If you are on an H-1B or L-1 and facing a layoff, partner-firm attorneys handle those cases; Frank does not cover H-1B or L-1. If you are wondering whether your record already supports an O-1, EB-1A or EB-2 NIW, start with the free evaluation, with no account and no card. Frank then shows which criteria you meet and finds real opportunities for the ones you do not. Starter is $49 a month with a 7-day free trial. Legal work is done by licensed attorneys at an independent partner firm; Green Card Guide is not a law firm, and this post is not legal advice.
Sources
All checked October 11, 2026.
- Federal Register, Eliminating the Discretionary 60-Day Grace Period, 91 FR 57807 (September 11, 2026; PDF). The proposal, its reasons, costs, alternatives, comment deadline and instructions.
- eCFR, 8 CFR 214.1 (up to date as of October 7, 2026). The current grace period, quoted verbatim, and the extension rules.
- eCFR, 8 CFR 214.2. H-1B portability and return transportation rules for H-1B and O workers.
- eCFR, 8 CFR 204.5(p). Compelling circumstances employment authorization.
- eCFR, 8 CFR 248.1. Change of status eligibility.
- Regulations.gov. Where comments on docket USCIS-2026-0364 are filed.
Frequently asked questions
Is the H-1B 60-day grace period still in effect?
Yes. As of October 11, 2026, 8 CFR 214.1(l)(2) is still in force. DHS has only proposed removing it. The proposal lists no effective date, and nothing changes unless a final rule is published and takes effect.
Who would lose the grace period under the proposal?
Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, and their dependents. DHS says they would be considered out of status the day after the principal's employment ends.
When is the deadline to comment on the proposal?
November 10, 2026. Comments go through regulations.gov under DHS Docket No. USCIS-2026-0364 and must be submitted before midnight Eastern time at the end of that day.
Can I work during the 60-day grace period?
Not unless you have separate work authorization. The regulation says the worker may not work during the period unless otherwise authorized under 8 CFR 274a.12. An eligible H-1B worker can start with a new employer once that employer files a nonfrivolous H-1B petition, or on the requested start date if later.
Is the grace period always 60 days?
No. It is up to 60 consecutive days or until your authorized validity period ends, whichever is shorter, once per validity period, and DHS may shorten or eliminate it as a matter of discretion.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
