DHS Proposes to End O-1 and H-1B 60-Day Grace Period

On September 11, 2026, the Department of Homeland Security published a Notice of Proposed Rulemaking that would eliminate the discretionary 60-day grace period currently available to certain employment-based nonimmigrant workers after their employment ends. The proposal affects workers in O-1, H-1B, L-1, E, and TN classifications, along with their dependents.

This rule is not in effect yet. The existing 60-day grace period remains available today, and DHS must complete the full rulemaking process before anything changes. For O-1 holders pursuing EB-1A or other self-petitioned green card pathways, the proposal raises important questions about timing and immigration status continuity.

What the Current Grace Period Allows

Under 8 CFR 214.1(l)(2), which became effective on January 17, 2017, USCIS may grant a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications to be considered as having maintained status for up to 60 consecutive calendar days after employment ends, or until the end of their authorized nonimmigrant validity period, whichever is shorter.

The purpose of the grace period was to enhance job portability, stability, and flexibility for high-skilled nonimmigrant workers upon cessation of employment. In practice, it provides a buffer to arrange a new employer petition, file a change of status, or prepare to depart the United States without immediately falling out of status.

USCIS policy guidance clarifies that the agency does not consider an O-1 beneficiary to have failed to maintain nonimmigrant status solely because of cessation of employment during this period. However, USCIS retains discretion to shorten or eliminate the grace period on a case-by-case basis.

What the Proposed Rule Would Change

The proposed rule, carrying DHS Docket No. USCIS-2026-0364 (RIN 1615-AD22), would strike 8 CFR 214.1(l)(2) from the regulations entirely. If finalized, workers in the affected classifications would no longer have a regulatory grace period after their employment ends.

The proposal was published in the Federal Register on September 11, 2026, with a 60-day comment period ending on November 10, 2026. Comments must be filed through the Federal eRulemaking Portal. After the comment period closes, DHS will review submissions, potentially revise the rule, and decide whether to publish a final rule. The timeline for a final rule is uncertain.

Until a final rule is published and takes effect, the current grace period remains in place. O-1 and H-1B workers whose employment ends today still have access to the up-to-60-day buffer.

Implications for O-1 Holders Pursuing EB-1A

For O-1 holders planning to self-petition for an EB-1A green card, the proposed rule does not restrict EB-1A eligibility, I-140 filing, or I-485 filing. It also does not change the ability to file an I-485 concurrently with an I-140 if your priority date is current. As of September 2026, the EB-1 category remains current for the worldwide category, so applicants chargeable to most countries can file an I-485 without waiting for a priority date to advance.

The practical concern is timing and status continuity. Filing or obtaining approval of an I-140 by itself does not confer immigration status. If your O-1 employment ends and you do not have another basis to remain in the United States, such as a pending I-485 or a new nonimmigrant petition, you would need to depart or risk accruing unlawful presence.

Under the current rule, the 60-day grace period provides a window to file a change of status, arrange a new O-1 petition with a different employer, or file an I-485 if your priority date becomes current. If the grace period is eliminated, that buffer disappears. Maintaining uninterrupted O-1 employment becomes considerably more important, especially if you have not yet filed an I-485.

Strategic Considerations and Next Steps

If you are currently in O-1 status and planning to file an EB-1A petition, consider the timing of your I-140 and I-485 filings relative to your O-1 employment. If your EB-1 priority date is current, filing your I-485 concurrently with your I-140 gives you pending adjustment of status and work authorization through an Employment Authorization Document (EAD), which can provide continuity if your O-1 employment ends. For more background on self-petitioned green card pathways, see our guide on skipping PERM for your green card.

If your priority date is not current or you are not ready to file an I-485, maintaining continuous O-1 employment or arranging a backup nonimmigrant status becomes more critical under the proposed rule. This may mean renewing your O-1 petition earlier, securing a new employer petition before your current employment ends, or consulting with your immigration attorney about other status options.

The proposed rule does not require immediate action, but it is a signal to plan conservatively. If you are between jobs or anticipating a transition, do not assume the 60-day grace period will remain available indefinitely. Build contingencies into your timeline.

What Happens Next

DHS will review public comments submitted by November 10, 2026, and decide whether to proceed with a final rule. The final rule could be published as proposed, revised in response to comments, or withdrawn. If a final rule is published, it will include an effective date, which may be immediate or delayed.

Until then, the current grace period remains in effect. Monitor the Federal Register and USCIS announcements for updates. If you have concerns about how the proposed rule might affect your case, consult a licensed immigration attorney who can evaluate your specific circumstances and advise on timing and status maintenance strategies.

The proposed rule does not change the substantive requirements for EB-1A or the ability to self-petition. It does, however, raise the stakes for maintaining lawful status during the transition from O-1 to permanent residence. Planning ahead and understanding your status options will be more important than ever if this rule becomes final.

VisaWorker helps O-1 and EB-1A petitioners organize evidence, draft recommendation letters, and prepare exhibits for USCIS. If you are planning your EB-1A petition and want to move efficiently, explore how VisaWorker can support your case.