DHS Moves to Eliminate the H-1B 60-Day Grace Period | Decade-Old Protection May Be Coming to an End

DHS has sent a proposed rule (RIN: 1615-AD22) to the White House for review that would eliminate the current 60-day grace period for H-1B workers who lose their jobs.

This proposal is not final. DHS has only submitted it to the White House Office of Information and Regulatory Affairs (OIRA) for review.

If OIRA clears the proposal, DHS can then publish the proposed rule and open it for public comment, usually for 30 to 60 days. After that, DHS would still need to review the comments and issue a final rule before any change could take effect.

The 60-day grace period was formally added to the federal regulations in 2017 under a broader DHS rule titled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The rule took effect on January 17, 2017.

That 2017 rule did much more than create the H-1B grace period. It also:

• created the 60-day grace period for workers in H-1B, E-1, E-2, E-3, H-1B1, L-1, O-1, and TN status;

• protected certain approved I-140 petitions from automatic revocation after they had been approved for at least 180 days; and

• formally incorporated important AC21 protections into the regulations, including provisions allowing certain H-1B workers to extend their status beyond the normal six-year limit.

So, the 60-day grace period is one part of the broader 2017 reform package aimed at improving status stability and job mobility for highly skilled foreign workers.

For now, nothing has changed. The 60-day grace period remains in effect.

We will know the actual scope of the proposed changes only after DHS officially publishes the proposed rule.