DHS Grace Period Proposal: H-1B and L-1 Layoff Sequence

The comment deadline is November 10, 2026. The proposal, released on September 11, 2026, would remove the 60-day post-employment grace period for certain employment-based nonimmigrant workers. The current grace period remains in effect because the action is only a proposal. If the rule is finalized, affected workers must leave the United States immediately after employment ends unless they have another lawful basis to stay.

That is the order of operations. First, the deadline. Then, the rule. Then, the workaround. The layoff-day sequence should treat termination as the start of a portability clock, not a cushion. The filing strategy should not wait for a later date.

The termination date is the first filing fact

Confirm the exact date employment ends. Done looks like a written notice, a payroll cutoff, and a status file that all show the same day. Since 2017, eligible employment-based nonimmigrant workers have kept status for up to 60 days after separation, including layoff. If the notice says one date and the payroll system says another, fix the discrepancy before any filing is prepared.

Ask HR for the final paycheck date, the last day worked, the benefits end date, and the layoff notice. Build a status file with the approval notice, the employment form, the passport, and any pending receipt. The file should answer one question without a second look: when did employment end?

The date should be the same in the layoff notice, the payroll record, and the immigration file. If the worker has a pending extension, note the receipt date in the same file. If the worker has a pending petition, note the filing date. The file should show the sequence, not just the date.

A pending petition is the safest next step

File portability before status lapses. Done looks like a new petition or transfer filed while the worker remains in status, with the termination date recorded in the cover letter. The proposal would cover the E, H-1B, H-1B1, L-1, O-1, and TN classifications, plus dependents. For those workers, the filing should be treated as urgent, not optional. The common mistake is waiting for the final day before filing. A late filing can leave the worker without a pending petition when status ends.

Prepare the petition with the new employer's information, the job description, the worker's qualifications, and the evidence that ties the new role to the worker's background. If dependents are part of the plan, include their documents in the same package. The cover letter should state the termination date, the filing date, and the basis for the new status claim.

The petition should be prepared so another attorney can review it without asking for the layoff story. The cover letter should be short, factual, and dated. It should say who ended employment, when, and what filing follows.

The records must match the filing

Update the I-9, the employment verification form. Done looks like a corrected or annotated form that reflects the end of employment, the worker's current status, and the date the change was made. The form should match the termination date used in the filing. Do not destroy the original form. Annotate it, keep it with the status file, and note who made the change.

The I-9 update should be conservative. Do not rewrite history. Do not backdate the annotation. The note should show that the employer acted on the termination date.

Time any extension-of-stay request. Done looks like a calendar that shows the filing date, the status dates, and the next action before the dates pass. The calendar should assume the current status time is still available. Put the filing date, the receipt date, the status dates, and the next review point on the same page. If the worker needs more time, the request should be prepared before the available time runs out, not after it has already closed.

The comment deadline is the next date

Note the comment deadline. Done looks like a calendar entry, a docket note, or a client alert that tracks the proposed rule and any later final action. The proposal is RIN 1615-AD22, its rule identifier, and it targets the discretionary grace period. The rule number is the filing reference for any later alert.

A docket note should include the rule number, the date from the opening, and the next review point. The note should also say who owns the follow-up and what the next action is if the rule moves. The file should be clean enough for another attorney to pick up without a follow-up question.

The docket should also track whether the rule is still a proposal. The note should say what to do next.