H-1B 60-Day Grace Period Repeal: What DHS Is Proposing and When It Could Take Effect

The 60-day grace period for work visa holders has not been repealed yet: DHS has only proposed the rule, and as of September 15, 2026, the proposal is in a public comment period running through November 10.

In short

• The 60-day grace period repeal and the $103,000 H-1B fee are still just DHS proposals in the comment period, not rules in effect.
• The comment period on the grace period repeal runs from September 11 to November 10; the earliest realistic effective date is February–March.
• Without the grace period, unlawful presence would begin the day after job loss, with no window to look for a new sponsor.
• The $103,000 fee would apply to all 85,000 cap-subject H-1B petitions per year, but not to non-cap petitions, universities, or nonprofits.
• Of the three DHS rules in the works, the H-4 EAD repeal has the best odds of becoming final — not the grace period or the fee.

What DHS actually proposed: two rules in the comment period

DHS has put forward a package of immigration regulatory changes, and two proposals from that package are already open for public comment. The first concerns repealing the 60-day grace period for nonimmigrant visa categories upon termination of employment. The second introduces a separate fee for H-1B petitions — that topic is covered in its own section below.

The proposal to repeal the grace period takes the form of a notice of proposed rulemaking from USCIS and DHS. As worded, the proposal calls for removing the existing grace period provisions from USCIS’s regulatory framework. These are the very provisions that currently give rise to the 60-day grace period — and their repeal is what the current rulemaking process is about.

As of publication, both proposals remain at the public comment stage: there is no final rule on repealing the grace period yet.

How the 60-day grace period works right now after a layoff

When a holder of an employer-sponsored visa (H-1B, L-1, and similar categories) loses their job, they currently have 60 days to pursue one of three options.

1. Transfer the petition to a new employer. A new employer willing to sponsor H-1B status must file a transfer petition — or at least manage to file it within those 60 days, even if a decision on it hasn’t been issued yet.
2. Change to another visa category. Any other visa that allows lawful presence in the U.S. will do — the change of status must be filed within the same 60 days.
3. Leave the country. If neither of the first two options works out, the person must depart the U.S. once the 60 days run out.

If none of these steps is taken, the status flips to unlawful presence — not gradually, but immediately once the period expires. Repealing this grace period means the shift to unauthorized stay would happen the very next day after job loss, with no window to search for a new sponsor or switch visa categories.

Repealing this grace period means the shift to unauthorized stay would happen the very next day after job loss, with no window to search for a new sponsor or switch visa categories.

Where the grace period came from — and why it’s easy to repeal

The 60-day grace period was never written into a law passed by Congress. It’s a discretionary provision introduced through DHS regulation: the agency, by its own rule, created the ability to grant a terminated visa holder up to 60 days of leeway.

That’s exactly why it can be repealed the same way it was introduced — through a new DHS regulatory action, without a Congressional vote and without touching the underlying immigration statute. The authority to grant up to 60 days of discretion was always the agency’s own call, not an obligation written into a statute — and what discretion grants, that same discretion can take away.

what discretion grants, that same discretion can take away

Who the grace period repeal would affect: visa categories and family members

The proposed grace period repeal covers all employer-sponsored nonimmigrant work visas:

• H-1B — visa for specialty occupation workers;
• L-1 — intracompany transferee;
• O-1 — visa for individuals with extraordinary ability;
• TN — category for Canadian and Mexican citizens;
• E-2, E-3 — visas for treaty investors and treaty-based specialists;
• H1B1 — a separate category for temporary specialty workers from certain countries.

The proposal separately includes dependent family members, whose status derives from the primary work visa: if the primary applicant loses the 60 days, the same applies to an accompanying spouse and children. The proposal therefore affects not only the worker who lost the job, but everyone whose lawful status in the U.S. rests on that visa.

Timeline: when the comment period ends and when the rule could take effect

Stage	Timing
Public comment period opens	September 11
Public comment period closes	November 10 (60-day comment window)
Agency review of comments	roughly a month after November 10
Final rule takes effect	30–60 days after the review period ends
Earliest realistic effective date	February–March

The comment period for the proposed grace-period repeal began on September 11 and runs through November 10. Once it closes, comments move on to agency review, which determines whether the final rule takes effect. Even with a favorable outcome, the rule wouldn’t kick in right away: another 30–60 days are built in after the review period ends. Adding up all three stages — two months of comments, roughly a month of review, and up to two more months to take effect — the earliest realistic date for the grace period’s repeal falls in February or March. For the entire stretch until then, roughly the next six months, the current 60-day grace period continues to apply as it does today.

The $103,000 H-1B fee: who pays and who’s exempt

DHS is proposing a $103,000 fee for H-1B petitions — a second regulatory proposal currently in the comment period and not yet in effect.

The fee wouldn’t apply to all visa holders, but to employers filing petitions under the annual cap. That means two categories of sponsors: those filling the standard cap of 65,000 visas per year, and those filing under the additional cap for applicants with advanced degrees — another 20,000 visas per year. Combined, all 85,000 cap-subject H-1B petitions per year would fall under the fee if the rule is finalized.

Petitions that are cap-exempt (non-cap) are excluded from the fee. Universities, nonprofit research organizations, and governmental research organizations would not pay it.

According to DHS, the fee is meant to cover not the processing of a specific H-1B petition, but USCIS’s broader operational costs across other types of filings — which sets it apart from a fee tied to the cost of processing that particular case.

the fee is meant to cover not the processing of a specific H-1B petition, but USCIS’s broader operational costs across other types of filings

The fee has not taken effect yet — like the grace-period repeal, it is currently going through the public comment process.

Who pays the $103,000 fee and who’s exempt

Category	Pays the fee	Exempt from the fee
Petition type	Cap-subject H-1B petitions	Non-cap, cap-exempt petitions
Annual cap	65,000 standard + 20,000 for advanced-degree applicants	—
Organizations	Regular sponsoring employers	Universities, nonprofit and governmental research organizations

Combined, all 85,000 cap-subject H-1B petitions per year would fall under the fee if the rule takes effect.

Which of DHS’s proposals is more likely to take effect

Besides the grace-period repeal and the H-1B fee, DHS is preparing a third proposal — targeting the H-4 EAD program, the work authorization for spouses of H-1B holders. It hasn’t yet reached the comment period, meaning it’s at an earlier stage than the two rules currently open for comment.

That H-4 EAD proposal is assessed as having the best odds of reaching a final rule. The 60-day grace period repeal and the $103,000 H-1B fee have lower odds of being adopted as final rules.