DHS Wants to Scrap the 60-Day Grace Period. Here’s What Mobility Teams Should Do Now.

Department of Homeland Security (DHS) has sent the Office of Management and Budget (OMB) a proposed rule to eliminate the 60-day nonimmigrant grace period. We’re here to help you understand what to do about it.

What the Grace Period Does

Right now, if a nonimmigrant employee’s job ends, they don’t fall out of status the same day. They get up to 60 days – or until their I-94 expires, whichever comes first – to find a new sponsor, change status, or leave the country. One use per authorised period.

That cushion protects companies during layoffs and restructurings, allows talent to change employers, and prevents people from sliding into unlawful presence overnight.

What Happens if DHS Pulls It

Take away the grace period, and three things change fast:

• H-1B portability breaks. Section 214(n) allows an H-1B employee to start a new job as soon as the new employer files a petition, but only if the employee is still in status when the petition is filed. No grace period means no gap allowed. Any lag between the old job ending and the new petition landing forces the hire through a U.S. consulate instead.
• Removal risk turns on immediately. Without status, a person is deportable under INA § 237(a)(1)(C)(i) from day one. The unlawful presence clock starts too, and enough days trigger 3- or 10-year re-entry bars.
• Everyone leans on a narrow exception. The fallback becomes a nunc pro tunc request under 8 CFR § 214.1(c)(4), USCIS forgiving a status lapse for “extraordinary circumstances.” Historically, that’s a hard case to win – discretionary, not guaranteed.

How Fast is this Moving?

Not overnight, but not slow either. OMB review is the last stop before DHS can publish the rule in the Federal Register as a formal proposal. After that:

• A public comment period runs 30 to 60 days.
• DHS has to read and respond to those comments before writing a final rule, usually a months-long process.
• Once the final rule is published, it could take effect in as little as 30 days.

That timeline argues for planning now, not waiting for the final rule to drop.

The Bigger Picture

This isn’t a one-off. DHS is simultaneously moving to end open-ended “Duration of Status” for F-1, J-1, and I-visa holders, replacing it with fixed admission periods and more paperwork.

Meanwhile, new fees tied to H-1B and L-1 extensions are adding cost on top of complexity. And in an interesting twist, DHS has gone the other way for H-2A and H-2B workers, expanding their grace periods and portability. High-skilled visas are getting squeezed while seasonal labor programs get more flexible. Worth knowing, even if the “why” is above our pay grade here.

What To Do, Starting Now

1. Rethink how you off-board

Immediate termination plus a 60-day grace period won’t work if the grace period disappears. Consider:

• Paid administrative leave instead of a hard stop. Keep the employee on payroll and benefits while they search for a new sponsor or prepare to depart. Their status stays intact because they’re still employed.
• Severance language that ties the final payroll date to the receipt date of a new petition or change-of-status filing, not a fixed calendar date.

2. Speed up hiring for people already in the U.S.

If a candidate loses their job before your petition is filed, in-country portability may not be an option. So:

• File the Labor Condition Application the moment you extend a conditional offer. Certification takes about a week, and there’s no reason to wait.
• Use Premium Processing as the default for lateral hires, not the exception, so you get a decision in 15 calendar days rather than months.

3. Build a Plan B for consular processing

Sometimes a gap is unavoidable. When it happens:

• Track visa appointment wait times at the relevant consulates before you need them, not after.
• Consider an Employer of Record or overseas affiliate to keep someone employed and productive abroad while their U.S. paperwork catches up.

4. Tighten your compliance tracking

Manual spreadsheets tracking I-94 expirations won’t cut it in a zero-margin-for-error environment. Automate status and visa-validity tracking, and connect it to your HRIS and payroll systems so a status change triggers an alert.

Beyond Compliance: Why this Matters

Foreign-born professionals accounted for 88% of U.S. labor force growth between 2019 and 2024, according to National Foundation for American Policy research; 3.6 million foreign-born workers added against 479,000 U.S.-born workers, concentrated heavily in engineering and tech. Foreign nationals also founded more than half of America’s billion-dollar startups.

Make it harder to retain that talent, and companies will watch skilled people take their careers to Canada, the UK, or the EU instead.

.

This Decision Isn’t Final

The rule still has to clear OMB, survive a comment period, and get published. But “not final” isn’t the same as “not urgent.” The organisations that update their offboarding, hiring, and travel policies now – and that weigh in during the public comment period – will be the ones that keep their talent pipelines intact when the rule does land.

Alice Garnett

Alice Garnett

Alice is a London-based journalist, podcast producer, host, and marketer with 5+ years of experience working for cutting edge tech startups that strive to harness the power of technology for good.

Read articles