The NPRM to Kill the 60-Day Grace Period Is Published. You Have Until November 10.

It published this morning

The proposed rule that immigration practitioners have been anticipating since August 27 is now officially in the Federal Register. Document 2026-18631 — titled 'Eliminating the Discretionary 60-Day Grace Period' — was published September 11, 2026. The 60-day public comment period is open. The deadline is November 10, 2026.

Two things change today. First, the NPRM text is now public, and the precise regulatory language DHS wants to strike is on the record. Second, the comment clock has started. If you want your objection — or your employer's objection, or your attorney's — on the administrative record that courts would review if this rule is ever challenged, November 10 is your window.

The grace period itself has not changed. An H-1B worker laid off today still has up to 60 days of regulatory protection before their status is at risk. Nothing in the NPRM's publication alters 8 CFR § 214.1(l)(2), which stays in force until a final rule replaces it. Today matters for the rulemaking process, not for the grace period's current legal status.

What the NPRM actually proposes to strike

DHS wants to remove 8 CFR § 214.1(l)(2) from the Code of Federal Regulations entirely. That paragraph was added in a 2017 Obama-era rulemaking and is the provision that says employment cessation does not — by itself — constitute a failure to maintain nonimmigrant status, for up to 60 days or until the petition period expires, whichever is shorter. The DHS docket number for this proposal is USCIS-2026-0364, and the regulatory identification number is RIN 1615-AD22.

H-1B workers are the obvious focus, but the rule is broader. The categories covered by 8 CFR § 214.1(l)(2) include E-1 treaty traders, E-2 treaty investors, E-3 Australian specialty occupation workers, H-1B, H-1B1 (Chile and Singapore), L-1A and L-1B intracompany transferees, O-1 extraordinary ability holders, and TN trade professionals from Canada and Mexico. Their derivative family members — H-4 spouses and children, L-2 dependents, O-3 family — are covered because their status tracks the principal worker's.

DHS's stated rationale draws on INA § 214(a), which gives the Secretary of Homeland Security broad authority to prescribe conditions for nonimmigrant admission and status maintenance. The regulatory filing characterizes the grace period as a discretionary policy provision that DHS has the authority to remove. Whether that characterization survives APA scrutiny is precisely what the comment period, and any eventual litigation, will test.

The thing that is easy to miss about how the grace period works

The grace period at 8 CFR § 214.1(l)(2) is not a flat 60-day benefit from the date of layoff. It runs until the earlier of 60 days or the expiration of the authorized petition validity period. A worker whose H-1B petition validity expires in three weeks does not have 60 days after losing their job. They have three weeks.

This is the number most people do not know until they actually need it. If your I-94 and the underlying petition both expire next month, the grace period ends at that expiration regardless of when the layoff happened. Under the proposed elimination, that already-limited window disappears entirely — the layoff date and the status-end date become the same day.

The practical implication for workers approaching a petition renewal is specific: get extension petitions filed before employment uncertainty arises. A pending extension petition filed before the current I-94 expires keeps the worker in a period of authorized stay under USCIS processing timelines. A grace period you never have is not protection. Under a finalized elimination rule, it will be even more important to stay ahead of renewal cycles rather than relying on the cushion.

Why the comment period matters more than most people think

The NPRM public comment period is a requirement of the Administrative Procedure Act. DHS must publish the proposed rule, receive public comments, consider those comments, and respond to significant ones before finalizing. Courts reviewing a final rule under APA challenges look specifically at whether the agency adequately addressed substantive objections raised during the comment period. A final rule that ignored serious legal arguments from the comment record is vulnerable to judicial invalidation on arbitrary-and-capricious grounds.

A comment that is vague — 'this is unfair to workers' — places nothing on the legal record that requires a response. DHS has no obligation to address comments that raise only general policy disagreement. A comment that identifies a specific statutory conflict, a data gap in the agency's analysis, or a regulatory interaction the NPRM failed to consider can require a written response before the final rule is published. Law firms, employer associations, and professional societies will be filing detailed comments. Those comments and DHS's responses become part of the administrative record.

If you are an immigration attorney with documented case examples of how the grace period functions in practice — transfer petition timelines, typical time to find a new employer, documented employment gap patterns — those specifics are exactly what DHS needs to address and what courts would look at. Anecdotal data from practitioners is actually more useful in a comment than broad legal arguments, because it forces the agency to engage with concrete facts it may not have considered.

The I-485 problem that is not getting enough attention

The intersection of grace period elimination with the employment-based green card queue is the part of this story that has not been discussed enough. The specific scenario: an H-1B worker with a pending I-485 adjustment-of-status application gets laid off. Under current law, the grace period — up to 60 days — plus AC21 portability rights allow the worker to find a new employer and port the pending I-485 to a same-or-similar job without starting the green card process over.

AC21 portability under INA § 204(j) permits a pending I-485 to remain valid after an employer change, as long as the application has been pending for at least 180 days and the new job is in the same or similar occupational classification. But AC21 portability does not protect a worker who has accrued unlawful presence. Under INA § 245(k), an employment-based I-485 applicant can have accumulated no more than 180 days of unlawful presence, failure to maintain status, or unauthorized employment since their last lawful admission for adjustment to proceed.

If the grace period is eliminated, a layoff triggers an immediate status question. A worker who cannot immediately secure a new H-1B sponsor — because the process of finding a job, signing an offer letter, and filing a transfer petition takes weeks — may begin accruing what USCIS could characterize as a failure to maintain status from Day 1 after the termination. For people deep in the I-485 queue who are counting on AC21, this is not an academic issue. Talk to your immigration attorney specifically about how this proposed rule would affect your pending adjustment and your portability eligibility before the grace period disappears.

The H-4 complication that compounds this

H-4 spouses are navigating two simultaneous threats right now, and they are legally independent but practically linked. The first is this NPRM: if the principal H-1B worker loses the grace period, the H-4 dependent's status — which is derivative — becomes immediately unstable on the same day. There is no separate grace period for an H-4 holder.

The second is DHS's separately pending regulatory agenda item to eliminate H-4 employment authorization. That proposal has not yet been published as an NPRM, but it was added to the DHS long-term regulatory agenda earlier this year. The H-4 EAD elimination and the grace period elimination are not in the same rule, but for an H-4 spouse currently working on an EAD, the combined exposure is considerable: the work authorization at risk from one rule, and the underlying immigration status at risk from another.

Neither rule is final. Both are in the early proposal stage. But the gap between 'regulatory agenda item' and 'final rule' has shortened considerably under the current administration compared to historical timelines. Assuming either proposal takes eighteen months to finalize, as prior administrations' rules typically did, is not a safe planning assumption in this regulatory environment.

The timeline from here to a final rule

The comment period runs from September 11 to November 10, 2026. After November 10, DHS reviews all comments received, prepares responses to significant ones, and drafts a final rule. The time between comment period close and final rule publication varies. On a rule the current administration treats as a priority — and the 21-day OIRA turnaround in August suggested this one is — the agency has moved quickly. The current administration has published final rules within three to four months of comment period close on other immigration rules.

The grace period remains in full force throughout the rulemaking process. Even after a final rule is published, final rules typically have an effective date 30 to 60 days after Federal Register publication, giving affected workers and employers time to adjust. A rule that becomes effective immediately upon publication is unusual and would likely draw immediate legal challenge. But planning on the basis of current law and then being caught off guard by a rapid final rule is a worse position than adjusting now.

Legal challenges to final rules proceed in parallel with the rule's effective date. A court challenge does not automatically stay a final rule's effect; challengers need to seek and obtain a temporary restraining order or preliminary injunction to stop enforcement while litigation proceeds. The administrative record built during this comment period — the one that closes November 10 — is what those challengers would argue from.

What to do in the next 60 days

If you are an H-1B worker: know your dates. Your I-797 approval notice shows your petition validity period. Your I-94 shows your authorized stay. If the petition expires soon, the grace period — while it still exists — ends at petition expiration, not at 60 days from a layoff. Under a finalized elimination rule, you have no buffer. The action item is simple: stay ahead of renewal filings and do not let petition gaps open up.

If you are an employer with H-1B, L-1, or O-1 workers: engage immigration counsel about submitting comments to USCIS-2026-0364 at regulations.gov. Employer-specific data — average time to process a transfer petition, average time between a layoff notice and a new employer's signed offer letter, number of workers who used the grace period to bridge a job transition last year — is exactly the kind of factual record that can force DHS to address gaps in its rulemaking analysis.

If you have a pending I-485: ask your attorney specifically how grace period elimination interacts with your AC21 portability analysis and your § 245(k) unlawful presence calculation. This question may not have a resolved answer yet, because the rule is not final, but getting your attorney's read on the exposure now is better than finding out after a layoff.

Comments can be submitted at regulations.gov under docket USCIS-2026-0364. The deadline is November 10, 2026. This article is informational only and does not constitute legal advice. The 60-day grace period at 8 CFR § 214.1(l)(2) remains in full effect as of the date of this article. No final rule has been issued. Consult a licensed immigration attorney before making any filing or status decisions.