DHS moves to end post-termination grace period for foreign workers

The Department of Homeland Security (DHS) has proposed eliminating the discretionary 60-day grace period that allows certain employment-based nonimmigrant workers to remain in the United States after losing their jobs. If finalized, the rule would require affected nonimmigrants whose employment has ended to depart the country immediately unless they have separate authorization to remain.

The proposal would rescind a regulation that allows principal nonimmigrants holding certain visas (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN), along with eligible dependents, to remain in the United States for up to 60 consecutive days following the cessation of employment or until the end of their authorized stay, whichever occurs first. The grace period gives workers time to seek new employment, obtain a change of status, secure sponsorship from another employer or make arrangements to leave the country.

According to DHS, eliminating the provision would mean that a foreign national whose employment ends before the expiration of their authorized stay generally could no longer remain in the US based solely on their prior nonimmigrant status.

The grace period was implemented in 2017 to provide greater flexibility for certain high-skilled foreign workers and their families during periods of job transition. Immigration attorneys and business groups have argued that the provision helps employers and employees navigate layoffs, restructurings and other workforce disruptions without triggering immediate immigration consequences.

The proposal comes when many employers continue to depend on highly skilled foreign workers, particularly in technology, engineering, health care and other specialized fields.

For HR professionals, the proposed change raises workforce planning and compliance concerns. Employers that sponsor foreign nationals often rely on the grace period to give terminated employees an opportunity to secure new employment, transfer sponsorship or pursue another immigration option. Eliminating that flexibility would shorten the timeline for making immigration-related decisions after a layoff or termination and increase the need for prompt coordination among HR, employment counsel and immigration counsel.