H-1B 60-Day Grace Period May End: Immigrant Intent Risks

Quick Answer

The H-1B 60-day grace period has not been eliminated yet.

But DHS has submitted a proposed rule titled “Eliminating the Discretionary 60-day Grace Period” for White House review.

If finalized, the rule could make layoffs much more dangerous for H-1B workers and other employment-based visa holders.

The biggest hidden problem is immigrant intent.

Many H-1B workers are already pursuing green cards. If they lose their job and the 60-day grace period disappears, they may be pushed toward temporary fallback options, such as B-2 visitor status or F-1 student status, that can be harder to justify when they already have long-term plans to immigrate.

The Bottom Line

The current 60-day grace period gives foreign workers time to recover from job loss.

It may allow time to:

Find a new employer
File an H-1B transfer
Change status
Move to dependent status
Protect a pending green card strategy
Leave the United States in an orderly way

If DHS eliminates this grace period, job loss could become an immediate immigration emergency.

What Is the H-1B 60-Day Grace Period?

The 60-day grace period is a rule that protects certain foreign workers after employment ends.

Under current regulations, workers in covered categories may be treated as maintaining status for up to 60 consecutive days after job loss, or until their I-94 expires, whichever comes first.

The rule appears at 8 CFR 214.1(l)(2).

Which Visa Categories Are Covered?

The current rule covers workers and dependents in:

H-1B
H-1B1
L-1
O-1
TN
E-1
E-2
E-3

This means the proposal is not only an H-1B issue.

It could affect professionals, executives, managers, investors, treaty traders, extraordinary ability workers, Canadian and Mexican professionals, and their families.

Has the Rule Already Changed?

No.

As of now, the 60-day grace period remains in effect.

DHS has submitted the proposed rule to the Office of Information and Regulatory Affairs under RIN 1615-AD22. The title is “Eliminating the Discretionary 60-day Grace Period.”

That means the rule is under review.

It does not mean it is already final.

Likely Timeline

The normal rulemaking process usually includes:

White House review
Publication of the proposed rule
Public comment period
DHS review of comments
Final rule
Effective date

Workers should not panic as if the rule ended today.

But they should plan as if the government is serious.

Why This Proposal Creates So Much Fear

A layoff is already stressful.

For an H-1B worker, it can also threaten lawful status.

Without the grace period, a worker may have very little time to:

Secure a new job offer
Get sponsorship approved
File a Labor Condition Application
Prepare an H-1B transfer
Protect a spouse or child’s dependent status
Decide whether to change status
Decide whether to leave the United States

Real hiring does not happen overnight.

Immigration filing does not happen overnight either.

That is why the 60-day grace period matters.

The Immigrant Intent Trap

This is the deeper issue.

Many H-1B workers are not ordinary temporary visitors.

They may have:

An approved I-140
A pending PERM labor certification
A priority date
A pending adjustment strategy
Years of lawful work history in the United States
U.S.-citizen children
A home, career, and long-term life in America

H-1B allows dual intent.

That means an H-1B worker can legally hold temporary H-1B status while also pursuing a green card.

But many fallback options do not work the same way.

Why B-2 Can Be Risky After H-1B Job Loss

Some laid-off H-1B workers consider changing to B-2 visitor status.

That may be possible in some cases.

But B-2 is a visitor category.

A B-2 applicant generally must show temporary intent.

That can be difficult if the worker has:

An approved I-140
A long-term green card plan
A U.S. home
U.S.-citizen children
A spouse working in the United States
A history showing a clear plan to remain permanently

This does not mean B-2 is impossible.

It means the case must be prepared carefully.

The government may ask a simple question:

If you intend to live permanently in the United States, why are you asking for visitor status?

That is the immigrant intent problem.

Why F-1 Can Also Be Risky

Some workers consider returning to school.

F-1 status may be a real option for some people.

But F-1 requires a genuine academic purpose.

It also raises temporary intent issues.

A weak F-1 strategy can create problems if it looks like the person enrolled mainly to stay in the United States after a layoff.

Extra caution is needed with:

Day 1 CPT
Questionable schools
Programs unrelated to the worker’s career
Last-minute enrollment
Prior green card history
Prior immigrant petitions

F-1 may be useful in the right case.

It should not be treated as a simple emergency shelter.

Why an Approved I-140 Does Not Solve the Problem

An approved I-140 is valuable.

It may help preserve a priority date.

It may support future H-1B extensions beyond six years.

It may show progress toward permanent residence.

But it does not by itself keep someone in H-1B status after job loss.

A worker can have an approved I-140 and still need a valid nonimmigrant status, a pending adjustment application, a new employer filing, or another lawful strategy.

Common Worker Scenarios

Scenario 1: H-1B Worker With a New Job Offer

This is often the cleanest case.

The strategy may be:

Confirm the termination date
Confirm I-94 expiration
Have the new employer file the LCA quickly
Prepare the H-1B transfer
File before the safe period expires

If H-1B portability applies, the worker may be able to begin working after the new petition is properly filed.

Scenario 2: H-1B Worker With No Job Offer Yet

This is the danger zone.

Possible options may include:

B-2 change of status
Dependent status through a spouse
F-1 if there is a real academic plan
Departure and consular processing
Marriage-based adjustment if eligible
Employment-based adjustment if eligible

The right answer depends on the worker’s full history.

Scenario 3: H-1B Worker With Approved I-140

This worker may have strong long-term immigration equities.

But immigrant intent may make B-2 or F-1 more complicated.

The strategy should focus on:

Fast H-1B transfer if possible
Preserving priority date
Reviewing AC21 or adjustment options
Avoiding status gaps
Avoiding rushed filings that create misrepresentation concerns

Scenario 4: H-1B Worker Married to a U.S. Citizen

A marriage green card may be an option.

But timing matters.

Questions include:

Is the marriage bona fide?
Did the worker maintain lawful status?
Was there unauthorized employment?
Is adjustment of status available?
Is travel risky?
Should the case be filed immediately?

The 60-day grace period can provide time to prepare a stronger filing.

Without it, families may feel forced to rush.

What Workers Should Do Immediately After a Layoff

Step 1: Confirm the Real Termination Date

Do not guess.

Identify:

Last day worked
Last day on payroll
Severance period
Final pay date
Employer withdrawal date
I-94 expiration date

Step 2: Download the I-94

The I-94 is critical.

If the I-94 expires before 60 days, the worker may not receive the full 60 days.

Step 3: Collect Immigration Records

Gather:

Passport
Visa stamp
I-94
H-1B approval notice
Pay stubs
W-2s
Termination letter
Severance agreement
PERM records
I-140 approval
I-485 receipt, if any
EAD or advance parole, if any
Spouse and child immigration records

Step 4: Move Quickly on H-1B Transfer Options

If a new employer may sponsor, speed matters.

The new employer should begin:

Immigration review
Sponsorship approval
LCA filing
Petition preparation
Premium processing review if appropriate

Step 5: Review Bridge Options Carefully

Possible bridge options include:

B-1/B-2 change of status
H-4 dependent status
L-2 dependent status
E dependent status
F-1 student status
Marriage-based adjustment
Employment-based adjustment
Departure and consular strategy

Each option has risks.

Immigrant intent must be reviewed before choosing B-2 or F-1.

What Workers Should Not Do

Do not assume:

You automatically get 60 full days
You can work during the grace period
A job interview protects your status
A verbal offer is enough
B-2 is always safe
F-1 is always safe
An approved I-140 protects your current status
Leaving the United States is always safer
HR understands your immigration deadline

What Employers Should Do Now

Employers should prepare before layoffs happen.

HR teams should:

Identify sponsored workers
Review H-1B, L-1, O-1, TN, E-1, E-2, E-3 and H-1B1 employees
Identify employees with pending green card cases
Coordinate with immigration counsel before terminations
Create a faster sponsorship approval process
Give workers accurate termination documents
Avoid giving casual immigration advice
Prepare for urgent H-1B transfer hiring

If the rule changes, employers that move quickly will have a recruiting advantage.

Employers that move slowly may lose talent.

H-1B worker reviewing 60-day grace period, immigrant intent, layoff, transfer, B-2, F-1, and green card options — DHS may eliminate the H-1B 60-day grace period, raising urgent questions about layoffs, immigrant intent, H-1B transfers, B-2, F-1, and green card strategy.

Why This Matters for the U.S. Economy

The 60-day grace period supports labor mobility.

It helps foreign workers move from one U.S. employer to another instead of leaving the country after a layoff.

It protects:

Technology companies
Hospitals
Universities
Startups
Manufacturers
Engineering firms
Research labs
AI companies
Smaller employers competing for global talent

Eliminating the grace period could make foreign professionals more cautious.

They may avoid startups.

They may stay trapped with one employer.

They may leave the United States after layoffs.

They may choose Canada, Europe, Australia, the United Kingdom, or India instead.

That hurts workers.

It also hurts American employers.

Frequently Asked Questions

Is the H-1B 60-day grace period gone?

No.

The current rule remains in effect unless DHS finalizes a new rule.

What is the DHS proposal?

DHS has submitted a proposed rule titled “Eliminating the Discretionary 60-day Grace Period” for White House review.

Who could be affected?

Workers and dependents in H-1B, H-1B1, L-1, O-1, TN, E-1, E-2 and E-3 status could be affected, depending on the final rule.

Can I work during the grace period?

No.

The grace period itself does not authorize work.

A worker may be able to work after a properly filed H-1B transfer if portability rules apply.

Can I change to B-2 after an H-1B layoff?

Possibly.

But B-2 is a visitor status. Immigrant intent can be a serious issue, especially if the worker has an approved I-140 or long-term green card plan.

Can I change to F-1 after an H-1B layoff?

Possibly.

But the student plan must be real, credible, and consistent with the worker’s history. F-1 is not a simple emergency fix.

Does an approved I-140 protect my H-1B status?

No.

An approved I-140 may help with future immigration strategy, but it does not keep the worker in H-1B status after employment ends.

Should I leave the United States before the grace period ends?

Sometimes yes.

Sometimes no.

Departure may avoid certain status problems, but it may create visa stamping, reentry, and consular risks.

What should I do if layoffs may be coming?

Prepare now.

Download your I-94, gather documents, review your green card stage, speak with immigration counsel, and identify backup options before termination.

Final Takeaway

The proposal to eliminate the H-1B 60-day grace period is frightening because it could remove the short window workers use to recover from job loss.

But the deeper issue is immigrant intent.

Many H-1B workers have followed the rules, built careers, pursued green cards, paid taxes, raised families, and created long-term lives in the United States.

If they lose their jobs, they may not fit neatly into visitor or student categories anymore.

They are not tourists.

They are not casual temporary visitors.

They are workers whom the U.S. economy invited to build roots, but whom the immigration system may still leave short of permanent residence.

For now, the 60-day grace period remains in place.

But workers and employers should not wait.

If you are in H-1B, L-1, O-1, TN, E-1, E-2, E-3 or H-1B1 status and you have lost your job, expect a layoff, or have a pending green card case, speak with an experienced immigration lawyer before choosing a bridge strategy.

Herman Legal Group has helped foreign workers, families, professionals, entrepreneurs, and employers navigate complex immigration problems for more than 30 years.

Talk to an Immigration Lawyer Before the Grace Period Runs Out

If you are in H-1B, L-1, O-1, TN, E-1, E-2, E-3, or H-1B1 status and you have lost your job, expect a layoff, or have a pending green card case, do not wait until your options narrow.

A layoff can affect:

Your lawful status
Your spouse or children’s status
Your I-140 or green card strategy
Your ability to transfer to a new employer
Whether B-2, F-1, dependent status, or adjustment of status is safe