What the proposal does
In the Federal Register of September 11, 2026 the Department of Homeland Security published a proposed rule that would repeal 8 CFR 214.1(l)(2). That provision today grants a period of up to 60 days, or until the end of the approved validity period if that is shorter, to a person in the United States in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status who ceases the employment or activity on which that status rests. During that period the person is not regarded as having failed to maintain status, and the same holds for the spouse and unmarried children under 21 who depend on that person.
The proposal is not yet in force. It is a notice of proposed rulemaking, which opens public consultation before the government decides. Comments may be submitted until November 10, 2026 at regulations.gov, under docket USCIS-2026-0364. Until a final rule is published, the period of up to 60 days remains in force exactly as it stands.
Where the 60-day period comes from
Before 2017 there was no period at all. The proposal itself describes the earlier regime. A person who lost a job was out of status from the day after the work ended, became removable under INA 237(a)(1)(C) and generally could no longer seek an extension of stay or a change of status, since both require status to have been maintained at the time of filing.
The period was created by the so-called AC21 rule, published on November 18, 2016, 81 FR 82398, and in force since January 17, 2017. From what the current proposal quotes of that rule, the stated aim was to let a skilled worker seek new employment without leaving the country and to let the U.S. employer hire with less friction. The 2026 proposal does not deny that aim. It states that the 2016 rule did not sufficiently consider the negative effects of the period.
Whom the proposal reaches
| Classification | What sustains the status, according to the proposal |
|---|---|
| E-1 | Substantial trade between the United States and the treaty country. |
| E-2 | Developing and directing the enterprise in which substantial capital was invested. |
| E-3 | Specialty occupation performed for the named employer, for a national of Australia. |
| H-1B and H-1B1 | Specialty occupation performed for the petitioning employer. |
| L-1 | Continuing to render services to the same corporate group, in a managerial, executive or specialized knowledge capacity. |
| O-1 | Continuing the work in the field of extraordinary ability or achievement that supported the petition. |
| TN | Professional business activity prearranged with a U.S. employer, for a national of Canada or Mexico. |
The spouse and children who depend on these classifications are reached along with the principal. The proposal acknowledges that a spouse authorized to work in E-1, E-2, E-3, H-4 and L-2 would lose that authorization for the same reason, and that the spouse's employer would feel the effect as well.
What would change in practice
- The person would cease to maintain status on the day after the employment or activity ends, and the text states that they must depart the United States immediately, unless otherwise authorized to remain.
- Return would occur through a new admission, once the approval matching the new employment has been obtained.
- The period of up to 10 days under 8 CFR 214.1(l)(1), which exists for the close of the validity period, is not reached by the proposal and would remain as it is.
- The proposal also removes the reference to the 60-day period from 8 CFR 204.5(p)(1)(i), which governs compelling circumstances employment authorization for those with an approved immigrant petition.
- The government itself records that some people would come to receive a Notice to Appear, opening removal proceedings before EOIR.
- The government further records that an employer who dismisses an H-1B or O-1 worker already bears the reasonable cost of return transportation, and that this expense would arise more often.
The reasons the government gave
The first reason is alignment with the statute. The preamble walks through the INA wording of each classification and stresses that the law ties status to a specific job, performed as a rule for a specific employer. Hence the Department's conclusion that the 60-day period disconnects status from its own basis, since no statute requires it. The authority invoked is INA 103(a) and, above all, INA 214(a), which empowers the Secretary to prescribe by regulation the time and conditions of admission of nonimmigrants.
The second reason is administrative burden. The Department argues that checking whether the period applies, establishing the exact date employment ended and deciding whether the period should be shortened or eliminated makes adjudication longer and less predictable. It reports that from October 1, 2017 to May 20, 2026 more than 1.9 million petitions and applications went through that initial check. It also observes that proof of the termination date is not standardized, and that at times the officer must infer it from a payroll document.
The preamble also addresses the agency's own change of position, which is the most delicate legal point in any regulatory repeal. The Department expressly acknowledges that it is changing position and argues that reliance on the 60-day period is fragile, because granting or withholding the period was always a discretionary decision made when a later request was examined. For this it cites Supreme Court precedents quoted in the preamble itself, among them FCC v. Fox Television Stations and Motor Vehicle Manufacturers Association v. State Farm.
What the government considered and rejected
- Removing the period only for some classifications. Rejected as not resolving the misalignment with the statute or the administrative burden for the rest.
- Shortening the period instead of ending it. Rejected because the check the officer performs would remain the same.
- Keeping the period with a strict evidentiary requirement as to the termination date. Rejected because the officer would still have to examine and verify that evidence.
The government's own figures
| Fiscal years 2021 to 2025 | Total for the period | Average per year |
|---|---|---|
| People who ceased employment or changed employers | 328,758 | 65,752 |
| New work petition filed within the 60 days | 18,975 | 3,795 |
| Adjustment of status application filed within the 60 days | 1,924 | 385 |
| Change or extension of status application within the 60 days | 5,596 | 1,119 |
| Compelling circumstances employment authorization within the 60 days | 49 | 10 |
The proposal estimates that someone who must respond to a Notice to Appear and attend the hearing spends between 204.43 and 300.53 dollars in time and travel. It also calculates, as an upper bound, the lost income of someone taking two months to search for work abroad and return, at 21,877 dollars, from a median annual compensation of 131,000 dollars. These figures come from the document itself and may be revised in the final rule.
What to follow from here
- The final rule, which may keep, change or abandon the proposal. No date has been announced for it.
- The transition regime. The proposal does not say what would happen to someone already within the 60-day period on the day a final rule took effect.
- H-1B portability under INA 214(n). The proposal does not address the subject, and the point deserves attention in the final rule.
- Any court challenge to the final rule, which in immigration matters has been frequent.
- The comment period, which closes on November 10, 2026.
Sources
- Department of Homeland Security, Eliminating the Discretionary 60-Day Grace Period, notice of proposed rulemaking, 91 FR 57807, Federal Register of September 11, 2026, RIN 1615-AD22, CIS No. 2858-26, DHS Docket No. USCIS-2026-0364.
- 8 CFR 214.1(l), 8 CFR 204.5(p)(1)(i), 8 CFR 214.1(c)(4) and 8 CFR 248.1.
- INA 103(a), 214(a), 214(e) and 237(a)(1)(C), 8 U.S.C. 1103(a), 1184(a), 1184(e) and 1227(a)(1)(C).
- Retention of EB-1, EB-2, EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398, of November 18, 2016, cited as transcribed in the 2026 proposal.
Updated September 11, 2026, based on the notice of proposed rulemaking published in the Federal Register of September 11, 2026, 91 FR 57807, read in full. The proposal is not in force. The period of up to 60 days under 8 CFR 214.1(l)(2) remains in effect until a final rule is published. The final rule may differ from the proposal, and the final rule may still be suspended or set aside by a court. Confirm the situation before making any decision.