WASHINGTON — The U.S. Department of Homeland Security (DHS) is considering a proposed regulation to eliminate the 60-day grace period for foreign nonimmigrant workers who lose their jobs. The potential policy shift, currently under administrative review, could leave tens of thousands of employment-based visa holders with significantly less time to secure alternative employment, alter their visa status, or make arrangements to depart the United States.
Overview of the Proposed Regulation
The proposed DHS rule is under review by the White House Office of Management and Budget (OMB). The proposal has not yet taken effect, and its precise terms remain undisclosed until it is published in the Federal Register.
Should it pass OMB review, the rule will undergo a mandatory 30-to-60-day public comment period before DHS can consider issuing a finalized regulation. The proposal will not take effect or alter current procedures until the final rule is officially enacted.
Current Grace Period Framework vs. Proposed Changes
Existing Provision: Under current regulations, eligible foreign professionals on employment-based visas whose job ends before their authorized stay expires are generally granted a grace period of up to 60 days, or until the end of their authorized stay (whichever is shorter).
Intended Purpose: The rule was established to afford recently laid-off workers a reasonable window to find a new employer to sponsor their visa, apply for a change of status, or prepare for departure without immediately accruing unlawful presence.
Scope of Coverage: The existing grace period applies to principal visa holders and their dependents across multiple nonimmigrant categories, including H-1B, L-1, O-1, E-1, E-2, E-3, H-1B1, and TN.
Proposed Elimination: The pending DHS rule seeks to dismantle this protection for principal nonimmigrants and their dependents upon termination of employment.
Potential Impact on Indian Professionals
While the proposed rule applies broadly to nonimmigrant workers regardless of nationality, Indian professionals are expected to be disproportionately impacted due to their high representation in employment-based visa programs:
H-1B Statistics: Data from U.S. Citizenship and Immigration Services (USCIS) indicates that out of 399,402 approved H-1B petitions (covering both initial and continuing employment) in fiscal year 2024, approximately 71% of beneficiaries were born in India.
Job Transition Challenges: Removing the 60-day cushion would force laid-off H-1B workers to secure a new sponsoring employer immediately upon termination, severely restricting the practical timeline for job interviews, petition filings, or transitioning to alternative nonimmigrant classifications.
Current Status for Visa Holders
The 60-day grace period remains fully active and legally enforceable under current regulations. Unemployed visa holders retain the ability to utilize the existing grace period while the OMB review and subsequent public rulemaking processes proceed.
