WASHINGTON, Sept 12 (INS): The US Administration has proposed a new regulation
to eliminate the 60-day post-employment grace period for H-1B and several other
non-immigrant work visa holders. However, the grace period will continue to
be active during the public comment period for the proposal named “Eliminating
the Discretionary 60-day Grace Period.”
As per the existing rule, laid-off or transitioning H-1B, L-1, O-1 and other
workers have up to 60 days (or until their I-94 expires) to find a new job,
change status or leave the US.
The 60-day grace period will be axed for all of the following categories: H
Visas: H-1B and H-1B1, L Visas: L-1, O Visas: O-1, E Visas: E-1, E-2, and E-3
(An E-3 visa is a special nonimmigrant work visa designed exclusively for Australian
citizens), TN Visas ( Professional workers from Canada and Mexico) and Dependants:
All family members attached to these visa statuses.
The reason H-1B dominates the news headlines is due to the sheer volume of
holders. H-1B holders account for over 99% of all individuals who utilize the
grace period annually.
The US Department of Homeland Security's (DHS) plan for the change is currently
in the proposal stage and is not yet final. The grace period remains active
while the Government reviews public feedback,which has been invited.
The Government opened a 60-day window for public comments after publishing
the proposal.
If finalized, workers who lose their jobs must leave the US right away unless
they have another valid visa status.
Proposal will take several months to become Rule
If there is an overwhelming pushback from immigration advocacy groups, corporations,
trade associaltions and attorneys, pointing out valid technical, legal amd humanitarian
issues, the DHS staff may have to amend their proposal making it less harsh.
The public feedback window is open for 60 days, running from its publication
date on September 11, 2026, until it officially closes on November 10, 2026.
Reviewing substantive comments will typically take 2 to 6 months. Under the
Administrative Procedure Act (APA), DHS is legally required to review, sort
and address every unique substantive comment submitted to the Regilations Portal.
Once DHS drafts the "Final Rule," it must be sent back to the White House Office
of Information and Regulatory Affairs (OIRA) for a final evaluation and clearance.
(Initial permission was taken before notification).
The Final Rule is officially published in the Federal Register. Typically 30
to 60 days later (for facilitating compliance.) the rule becomes enforceable
law.
So well into early 2027 the visa holders are safe.
Broader US border enforcement actions
The proposed grace period reduction is part of a wider administrative push
to restrict legal immigration pathways and tighten interior guidelines.
The policy changes targeting undocumented immigration are separate and include:
The US State Department has implemented a policy of "continuous vetting," leading
to the revocation of over 175,000 visas for individuals who entered legally
on tourist or business visas and subsequently applied for asylum.
The Government has ramped up deportation and voluntary self-deportation metrics,
reporting that roughly 2.5 million undocumented individuals have exited the
country through accelerated removal procedures and stricter local law enforcement
cooperation.
Executive orders have directed the suspension of Federal funding to State and
local jurisdictions that refuse to comply with Federal immigration enforcement
actions.
For asylum seekers the administration implemented temporary pauses and stricter
guidelines on processing asylum requests, making it significantly harder for
individuals crossing the border to secure legal protection.
Public comment process for the DHS proposal
Because the rule to eliminate the grace period is a proposed regulation rather
than a Presidential executive order, affected individuals and organizations have a legal window to push back.
The DHS is required by law to open a 60-day public comment window. Anyone—including
affected workers, immigration attorneys, and corporate employers—can submit
feedback.
Federal agencies are legally mandated to review and respond to all unique substantive
comments. Significant pushback, especially from major tech corporations and
trade groups like Nasscom, can delay the implementation, force amendments or
lead to legal challenges in Federal courts before a rule is ever codified.
How does the legal window work
A legal window works differently for an administrative rule proposal by agencies
(the current one by the DHS) and Presidential executive orders.
When a policy is a proposed regulation, it means the Government department
has published a draft of the rule, but it is not yet a law.
Under US administrative law, Government agencies cannot change major visa rules
overnight. They must follow a multi-step process:
The agency publishes the proposed change. The policy does not go into effect
immediately. The old rules (like the 60-day H-1B grace period) stay active.
The department must wait, collect public feedback and legally address major
objections before deciding whether to make the rule permanent.
Two types of Government actions
An executive order, by contrast, is final and has an official start date. Executive
orders do not have a public comment window, but they do face a different kind
of legal check.
There are differences in how the public and courts can fight back against these
two types of Government actions.
For the proposed regulation a mandatory 60-day window allows the public, companies
and lawyers to submit formal feedback. As for executive order, the President
signs it, and it can take effect immediately without public input. In the former
case, the agency can withdraw or change it based on public backlash, or it can
be sued in court after it becomes final. In the latter case, it can only be
stopped if a Federal judge issues an injunction (a court order) declaring it
unconstitutional or illegal—the order had aleady gone into effect with immediate
effect or within days of being signed.
In the current proposal, companies or trade groups typically use the comment
window to try to block visa changes. Because the cannot do whatever they want.
They cannot simply ignore the feedback. Once the 60-day comment window closes,
DHS staff are legally required by the Administrative Procedure Act (APA) to
review and sort every substantive comment submitted by the public, immigration
lawyers, tech companies and trade groups.
What can happen to the proposal
Based on the feedback, data and legal arguments presented during the comment
window, the agency (the concerned department) will take one of three actions:
Modify the regulation (most common): If tech companies or economic data prove
that an immediate exit causes massive operational damage or unexpected costs,
the agency might compromise. For example, instead of reducing the grace period
to 0 days, they might scale it down to 30 days or create specific exemptions.
Proceed to a final rule: If the administration decides the political and policy
goals outweigh the public objections, the agency will write the final version
of the rule.
Withdraw the rule entirely (rare): If the legal or practical pushback is overwhelmingly
flawed or unworkable, the agency can choose to drop the proposal altogether.
The "Legal Catch"
If DHS decides to move forward and finalize the regulation, they must publish
a comprehensive response to all major public objections alongside the final
text. They have to explain mathematically, logically and legally why they rejected
the public's counter-arguments.
If the agency fails to adequately address significant critiques, immigration
advocacy groups or corporations will immediately sue the agency in Federal court.
A judge can strike down the entire regulation if the agency's response is deemed
"arbitrary and capricious" (essentially meaning the agency didn't do its homework
or ignored glaring evidence).
For a policy like the DHS's proposal, you cannot sue until it is finalized.
The opponents must wait for the 60-day public comment window to close and for
the agency to publish the "Final Rule."
The primary weapon used by immigration lawyers is the Administrative Procedure
Act (APA). The lawsuit will argue the final rule is "arbitrary and capricious."
Challengers must prove the agency ignored solid data, did not adequately answer
public objections or failed to account for "reliance interests" (e.g., the fact
that families bought homes and built lives based on the old rule). For example,
a Federal judge previously struck down a steep H-1B fee increase because the
administration overstepped its legal boundaries.
The Focus: Technical, granular details of how a visa functions
Example: Congress passed a law saying foreign workers must have a valid
job. The DHS is the agency that decides exactly how to track that—whether workers
get a 60-day grace period, a 30-day grace period, or 0 days to leave. The President
does not sit down to write specific agency forms or calculate visa processing
times; the agency does. His orders are for a bigger canvass, not for procedural
nuances of departmetal matters. . An Executive Order is signed directly by the President to command the entire Federal Government to pivot toward a massive national priority. EOs deal with sweeping, macro-level issues like national security, border closures and
structural changes to the economy. The "big issue" immigration items are handled
via Executive Orders. Examples are: Ending birthright citizenship, mass deportation,
halting refugee admissions for entire countries.
ANNEXURE: In case the DHS has its way
(after the 60-day feedback window) your options include (if no good job
available immediately), applying for visitor or tourist visa and buy time to
look for a job quietly. But there are complications you need to take care.
Alternatives for workers faced with job loss
If the 60-day grace period is eventually eliminated, foreign workers
will need to act proactively to maintain lawful status. Key alternatives include:
Changing status to B-1/B-2 (visitor visa): Filing a timely application
to change status to a tourist visa allows an individual to remain in the US
legally while searching for a new employer, though they cannot work during this
period.
Concurrent H-1B filing: Securing a new job offer and having the new
employer file an H-1B petition before the formal termination date allows a worker
to transition seamlessly via portability rules.
Enrolling in an academic program (F-1 visa): Transitioning back to a
student visa to pursue an advanced degree or specialized certification. Note
that the administration has also restricted F-1 rules, shifting them to a fixed
four-year maximum stay rather than open-ended "duration of status".
Spousal dependent visas (H-4 / L-2): If a worker's spouse holds an active
H-1B or L-1 visa, the individual can file to change their status to a dependant.
Transfer to an Uncapped "Cap-Exempt" H-1B Sponsor: Universities, non-profit research organizations, and government entities are "cap-exempt." They do not have to wait for the annual April lottery. File an H-1B transfer atany time of the year. Processing is faster. No corporate hassles.
Concurrent Filing / Adjustment of Status (Compelling Circumstances EAD):
For those with an approved I-140 immigrant petition who face sudden job loss, USCIS offers a "Compelling Circumstances EAD." The Benefit: If you can prove severe hardship (like losing a home or medical issues), USCIS may grant a temporary open work permit to let you stay and work in the US while waiting for a green card priority date.
Your responsibilities as a visitor/tourist
Visitors and tourists are legally allowed to search for jobs and attend interviews
while inside the US, but they cannot actually start working until their visa
status is changed.
The rules for anyone inside the country on a B-1 (business) or B-2 (tourist)
visa are very specific.
No domestic labour: You cannot accept a job, sign an employment contract to
start immediately, freelance or perform any local labour for hire while on a
visitor visa.
What all you can do
Job Hunting: You are fully allowed to submit job applications, browse
listings, network and speak with corporate recruiters.
Interviews: You can attend in-person or virtual job interviews with
prospective employers.
If offered a job, your new employer must file an employment petition (such
as an H-1B) with USCIS alongside a change of status application. You must wait
for that application to be fully approved and for your new work visa status
to take effect before you earn a single dollar or perform any duties. If your
change of status application is denied, you must immediately leave the country.
The tourist conundrum
For those coming in, your intent is checked at border entry. If you arrive
at a US airport as a tourist, but US Customs and Border Protection (CBP) officers
search your bags/phone and find resumes or proof that you are entering solely
to look for a job, you can be denied entry. The visa's primary purpose must
remain temporary business or tourism.
How can it be legal for a visitor to look for a job once inside the US, but illegal to enter the US with the intent to look for a job? The distinction comes down to a strict
US immigration concept called "Immigrant Intent" versus "Permissible Activities."
The law allows for the fact that a tourist's plans can honestly and spontaneously
change after they arrive.
They must prove their change of mind was genuine.
There is a "90-day rule" that US immigration uses to determine if a tourist
lied about their intent at the border
The first 90 days: If a tourist files for a student or work visa within 90
days of landing in the US, the Government automatically presumes the traveller
conducted wilful misrepresentation (lied at the border). The onus is upon you
to prove it otherwise.
What is I-94 (ai): An I-94 is an official arrival/departure record issued
by US Customs and Border Protection to foreign visitors entering the United
States. It proves you entered the country legally, shows your visa class (such
as B-2 tourist or F-1 student), gives the exact date you must leave the US,
or "D/S" for Duration of Status. It is an 11-character code used for official
tasks. You need it to apply for a driver's licence, a Social Security number,
or work authorization. Most I-94 records are now electronic. You can view, download
or print your record on the official I-94 Website.
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