H-1B Job Loss: What Deadline You Need To Check

Laying off a job can turn a normal week into a series of decisions that must be made immediately. There's a new job to find, rent to pay, and family to reassure. For an H-1B worker, there's also the task of finding out what the immigration deadline is based on the actual records that must be done right away.

The task of finding out the deadline has become more complex due to a proposed change in the rules. On September 11, 2026, Department of Homeland Security published a proposal to eliminate the discretionary grace period when employment is terminated. The deadline for public comments is Nov 10. This proposal does not eliminate the current protection. To make any decision now, one must understand the difference between the proposal and current rule.⁠[1]

What current grace period means?

As of current regulation, when an H-1B worker (and their dependents) can be considered to maintain their status after employment ends, it is for up to 60 consecutive days or authorized validity period (whichever is earlier). This is applicable once for each authorized validity period. DHS may reduce or eliminate this in an individual's case.⁠[2]

This protection is for employment loss. This does not mean any other status violations are excused, nor is there independent authorization for employment. Therefore, one must find the earliest applicable deadline and act on options quickly. One should not assume that everyone gets full two months.⁠[2]

Visa Stamp is for a different purpose

Even if visa stamp is valid for many more years, it may be misleading. As explained by Department of State, visa allows a person to travel to US port of entry and seek admission. It does not guarantee admission or determine length of stay after admission.⁠[3]

Gather most recent I-94, relevant approval notices and record of termination of employment. Review them together. For the period of authorized stay, visa expiration date cannot replace admission record and other subsequent immigration decisions.

Suppose, for example, employment ends with only three weeks left on authorized validity period. Here, the shorter period limit is relevant. One cannot assume that another 60 days will be available after expiration.⁠[2]

Process starts with new offer

Congress established H-1B portability to allow eligible workers to start new employment when a qualifying petition is filed, without necessarily waiting for approval. Statute requires lawful admission, a non-frivolous petition filed before authorized period of stay ends, and not engaging in unauthorized employment after relevant admission and before filing.⁠[4]

Implementing regulation also states that the worker must be lawfully admitted in or otherwise given H-1B status. Properly filed petition must request the appropriate amendment or extension of stay. Permitted start date is the filing date or requested employment start date, whichever is later. Approved petition does not establish that the person was admitted in or given H-1B status.⁠[5]

Offer letter, recruiter's assurance, or employer's statement that paperwork is being prepared does not establish these conditions. Before starting, one must make sure with the new employer that the petition has been properly filed and portability is applicable to that individual.

Portability provides temporary employment authorization while qualifying petition is being processed. This authorization ends when the petition is adjudicated. Denial of the petition ends the permission to work under that petition. If the petition is approved by USCIS but not the requested extension of stay, then one must get advice on what is the impact on employment and admission requirements and what must be done to continue working.⁠[4]⁠[5]

What if next employer is not ready?

There may be other nonimmigrant status that a worker can seek. This can include eligible dependent classification or visitor status. If there is a timely and qualifying application, one may be able to get a period of authorized stay while USCIS is considering the application. This does not mean that the requested status is already given. One must evaluate individually if this is eligible and what the impact of filing is.⁠[2]⁠[6]

Change of status request, if pending, does not automatically give authorization to start new job. Visitor status does not allow normal employment. Request must be accurate on the person's situation and meet the requirements of the requested classification.⁠[6]

Be sure to also consider each dependent's position. If the plan is only for principal worker, then there may be unanswered questions regarding spouse's documents or child's authorized stay.

Keep records accessible

Keep termination notice, employment agreement, pay statements, severance documents, approval notices, any new filing copies. Create a dated chronology. Identify any inconsistencies that can be resolved by counsel. If there is a payroll entry, also review employment documents. Just because payment was received does not necessarily establish when the employment ends.

This is more of a practical evidence exercise. DHS emphasized in the explanation of the existing rule that one must look at the circumstances surrounding termination of employment and subsequent actions taken by the person individually. Accurate records help evaluate the circumstances.⁠[7]

International travel is a different issue. Ability to stay temporarily in the US and eligibility to return after leaving the country are different issues. Admission is decided at the border. Unexpired visa is not enough.⁠[3]

Understand the rules for filing

Employers should give enough time to determine eligibility and file the petition. Workers should find the relevant dates before agreeing on the start date or planning travel.

The proposed elimination of the grace period is something to pay attention to. But, do not assume that the outcome of this proposal is settled law. For the decision that must be made today, identify what rule is applicable, what documents are used to establish the individual's position, and what needs to be done before the applicable deadline.

General legal information as of Nov 2, 2026. Individual advice depends on the person's records and circumstances. Recheck the applicable rules before filing or traveling.

Sources and Authority

Source numbers correspond to the reference in the article. Statutes and regulations are different from agency explanation and guidance.

[1] Proposed rule: Eliminating the discretionary 60 day grace period. 91 Fed. Reg. 57,807, 57,807-08 (Sept. 11, 2026). RIN 1615-AD22. Comment deadline is Nov 10, 2026. This is a proposal, not final repeal. Federal Register proposal

[2] Regulation: 8 C.F.R. § 214.1(l)(2)-(3). eCFR page retrieved on Nov 2, 2026. Currency was through Oct 29, 2026. Discretionary grace period was still there. Current regulation

[3] Agency guidance: US Department of State. What does visa expiration date mean? (Sections on visa validity and duration of stay) State Department explanation

[4] Statute: Immigration and Nationality Act § 214(n)(1)-(2). 8 U.S.C. § 1184(n)(1)-(2). House text had laws up to Public Law 119-124, October 15, 2026. H1B portability statute

[5] Regulation: 8 C.F.R. § 214.2(h)(2)(i)(H)(1)-(3). Includes eligibility. Later of filing or requested start date rule. Cessation of portability employment upon adjudication. H1B portability regulation

[6] Agency explanatory guidance: USCIS. Options for nonimmigrant workers after termination of employment. (Dec 19, 2022) Official USCIS GovDelivery bulletin. Used for limited distinction between possible period of authorized stay and permission to work. Must read with current regulations. USCIS bulletin

[7] Final rule explanatory preamble. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. 81 Fed. Reg. 82,398, 82,439 (Nov. 18, 2016). Effective Jan 17, 2017. Explanation of grace period

(Dr. Srinivas Rao Kaveti is an advocate in India and a solicitor admitted in England and Wales, associated with Ramseyer & Associates, P.C., New York whose practice areas include U.S. immigration, business and cross-border matters, and federal litigation. He holds an LL.M. from Queensland University of Technology, Australia. His articles explain immigration, business and cross-border legal issues for students, professionals, families and entrepreneurs)

ABOUT THE AUTHOR

Dr Srinivas Rao Kaveti

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