Comments close tonight on DHS plan to end H-1B workers' 60-day grace period

Top image: The U.S. Citizenship and Immigration Services Application Support Center at 153-01 Jamaica Avenue in Queens, New York, photographed on April 11, 2022. Photo by Tdorante10, CC BY-SA 4.0, via Wikimedia Commons.

A worker on an H-1B visa who is laid off today has up to 60 days to find a new employer before falling out of status. Federal officials want to end that. The Department of Homeland Security (DHS) is taking public comments on the plan until 11:59 p.m. Eastern time tonight. After that, the record closes.

The proposal appeared in the Federal Register on Friday, September 11, under the title "Eliminating the Discretionary 60-Day Grace Period." Secretary Markwayne Mullin signed it. The docket on regulations.gov shows the comment window closing at the end of November 10. By late Tuesday morning it listed 30,635 posted comments.

The change would reach workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN categories, along with their spouses and children. Indians hold most of those visas. Indian-born workers accounted for 72 percent of the 386,318 H-1B petitions approved in fiscal year 2023, according to that year's report to Congress from U.S. Citizenship and Immigration Services (USCIS). Most of them are on H-1B.

The grace period is young. DHS created it in the 2016 AC21 final rule, effective January 17, 2017. The department said then that it would help high-skilled workers move between jobs. Before that, a worker whose job ended was out of status at once.

The new notice argues the opposite. DHS writes that the 60 days cut a worker's status loose from the job that justified the visa. Removing them means "restoring the expectation that aliens depart the United States" when the work stops, the notice says.

The department also cites paperwork. Its officers screened more than 1.9 million petitions and applications for a possible grace period between October 1, 2017, and May 20, 2026, it says. That review takes time, DHS argues.

The department's own figures show who uses the window. On a five-year average, DHS estimates that 65,752 workers in these categories lost a job or changed employers each year from fiscal 2021 through 2025. The count peaked at 80,034 in fiscal 2023. Ninety-nine percent of the 328,758 workers in that total held H-1B status.

Few found a new sponsor inside the 60 days. A new employer filed a petition within that window for 5.77 percent of them, the notice says. Another 1.70 percent asked to extend or change their status. The notice does not say what happened to the rest.

DHS concedes that some workers "may be issued Notices to Appear," the charging papers that start deportation cases. It leaves several costs unquantified, including return travel that employers may owe H-1B and O-1 workers who leave. A separate 10-day period after a visa's validity ends would stay in place.

Steven Brown, a partner at the immigration firm Reddy Neumann Brown, spoke to HR Dive in September. A layoff two years into a three-year approval "leaves that employee with no cushion at all," Brown said. His firm has posted a free comment template for opponents.

Ana Gabriela Urizar is an immigration attorney at Manifest Law. In a review published by her firm, she said the period gives H-1B workers "a critical window to find a new employer."

Fragomen sounded a similar alarm. The firm told clients in a September 10 alert that laid-off workers "would need to depart the United States immediately" without other permission to stay. Nothing changes before a final rule.

The deadline has filled a large private Facebook group for Indians in the United States with reminders. "Comment period ends today," one anonymous member wrote on Tuesday. The post asked others to explain how the change would affect their families. Another member replied that comments would change nothing.

Members also shared a screenshot from X that pointed the other way. It showed a post urging followers to back the rule, with a sample comment attached. The post had about 29,000 views. The group ran a similar drive on a proposed H-1B petition fee, whose comments closed September 24.

Anyone may comment on the docket, number USCIS-2026-0364. Mailed, couriered or hand-delivered comments do not count, DHS says. Every submission is posted publicly with any personal details the writer includes. An earlier post in the group reminded members that the portal accepts anonymous comments.

Workers on these visas can check the end date on their current approval. The remaining 10-day period runs from that date. A family worried about a layoff can ask the employer how fast it files transfer petitions. Comments on a second DHS proposal, about H-1B extensions, close on Friday, November 13.

This article is general information, not legal advice.