- DHS opened a public comment period on Sept. 11 that runs through Nov. 10, 2026, before deciding whether to finalize the rule.
- The proposal would strike 8 CFR 214.1(l)(2), wiping out the 60-day buffer for H-1B, H-1B1, L-1, O-1, TN and E-1/E-2/E-3 workers, plus their spouses and children.
- DHS's own figures show 65,752 workers a year, on average, saw their job end or moved to a new employer under these categories between fiscal 2021 and 2025, yet only about 3,795 a year actually used that window to line up new sponsorship.
- Roughly 208,187 dependents a year, more than the workers themselves, would lose their own status the moment a spouse or parent's job ends.
A pink slip could soon mean an instant, overnight loss of legal status for tens of thousands of foreign professionals. On Sept. 11, 2026, the Department of Homeland Security filed a proposal to erase the 60-day cushion that H-1B workers and several other visa categories currently receive after losing a job, a window that for nearly a decade has let laid-off employees search for new sponsorship instead of scrambling to leave the country.
What the Current Rule Actually Allows
Since Jan. 17, 2017, workers in these employment-linked visa categories haven't automatically fallen out of status the instant a job ends. Regulators built in breathing room: up to 60 consecutive days, or whatever remains of a worker's authorized stay, whichever is shorter.
That stretch gives someone time to line up a new employer, request a change of status, pursue a green card if already eligible, or wrap up affairs before flying home. H-1B workers get an added edge under a separate portability rule: once a new employer files a fresh petition, the worker can start that job immediately, without waiting for approval.
None of it is guaranteed. USCIS can already shorten or cancel the grace period over fraud, unauthorized work, security concerns or a criminal record.
DHS's Argument: Tie Status Directly to the Job
The agency's reasoning is straightforward: nonimmigrant status in these categories exists because of a specific job, DHS argues in its formal notice, so once that job disappears, the legal basis for staying should disappear with it. Officials say the buffer breaks that link and adds friction to case processing, since adjudicators must pin down exactly when employment ended and then decide whether to grant, shorten or deny the cushion.
DHS points to a heavy paperwork trail as proof: more than 1.9 million petitions and applications required this kind of review between fiscal 2018 and May 20, 2026, a nearly nine-year span, not an open-ended tally that keeps growing today.
The Numbers Cut Both Ways
DHS's own data complicate its efficiency argument. On average, 65,752 workers a year went through a layoff or an employer switch under the covered categories between fiscal 2021 and 2025, a group that peaked at 80,034 in fiscal 2023 and bottomed out at 40,959 in fiscal 2021, with roughly 99 percent of them holding H-1B status.
Yet only about 3,795 workers a year actually had a new company file the sponsorship paperwork on their behalf before that 60-day window closed. Thousands more used the time for a status change, a permanent-residence bid or emergency work authorization instead. Workers who landed new sponsorship in that stretch earned a median annual wage of roughly $131,000 in fiscal 2025, underscoring how much is often at stake for the small share who benefit most directly. DHS admits it cannot say how many additional people relied on the cushion in ways its records simply do not capture.
A Reach That Goes Well Beyond Tech
The list of who is covered surprised even veteran immigration lawyers: E-visa treaty investors, H-1B1 specialists tied to Chile and Singapore, executives transferred between offices of the same multinational, O-1 holders recognized for extraordinary ability, and TN professionals who cross daily from Canada or Mexico. Few of them write code, yet all would lose the identical buffer.
Spouses and children attached to any of these statuses lose it too. DHS estimates roughly 208,187 dependents a year rode on a covered worker's status between fiscal 2021 and 2025, a bigger population than the workers themselves.
Built Around a Rule That May Disappear
DHS does not pretend the reversal is costless. Its filing acknowledges that companies have hired recently terminated foreign talent assuming a buffer existed, and that workers have bought homes, enrolled children in school and made career bets banking on those 60 days.
Brenda J. Oliver, a principal at law firm Jackson Lewis, argued in an analysis picked up by Staffing Industry Analysts that "for many H-1B professionals, a layoff does not simply mean unemployment." DHS counters that those reliance interests, while real, are outweighed by its push for tighter rules, leaning on Supreme Court precedent that lets agencies reverse course as long as they explain themselves.
Pushback Is Already Building
Nothing has changed yet, and the existing cushion stays active while DHS gathers comments through Nov. 10 under docket USCIS-2026-0364. A final rule, if one emerges, would likely arrive months later and could still draw a lawsuit arguing DHS glossed over the fallout for workers and families.
Ajay Bhutoria, a former member of a White House Asian American advisory panel, told IANS that "eliminating the 60-day grace period is inhumane and unworkable," warning that families would have no time to sell homes or pull children out of school.
The grace-period proposal lands alongside a separate DHS push for a $103,265 fee on new cap-subject H-1B petitions, part of a broader tightening of the employment-visa system this year. That fee proposal followed a federal judge's ruling in June that struck down a prior $100,000 H-1B fee as an unauthorized tax Congress never approved.
What Happens Next
For now, nothing is final. The public comment window runs through Nov. 10, 2026, and DHS must review that feedback before issuing or abandoning a final rule, a process that typically takes months. Whether the 60-day cushion survives depends on what DHS hears next, and how it responds.
