USCIS has proposed ending the 60-day grace period after an E-3 job ends

If your E-3 job ends tomorrow, you do not lose the grace period tomorrow. The regulation that gives certain workers up to 60 days after employment stops is still on the books. What changed on 11 September 2026 is that the Department of Homeland Security, through USCIS, asked the public to comment on deleting it.

The notice is Eliminating the Discretionary 60-Day Grace Period, 91 FR 57807 (11 September 2026), DHS Docket No. USCIS-2026-0364, RIN 1615-AD22. The agency line on the notice is USCIS. The Secretary of Homeland Security signed it. Comments go to regulations.gov under that docket number, and they must be in by midnight Eastern time on 10 November 2026.

The proposal matters for Australians on E-3 visas because the 60 days are the only built-in pause the regulations give you after a job ends. E-3 does not have the H-1B rule that lets someone start a new job when the new petition is filed. Take the pause away, and a layoff stops being a filing window and becomes a departure problem, unless some other lawful basis to stay is already in place.

The 60 days were never permission to start the next job. They were time to file something else, or to leave, without being treated as having fallen out of status solely because the job had ended.

In this article

• What the law still says
• What the notice would delete
• Why USCIS says it wants the change
• What “the day after” would mean for an E-3 holder
• Why E-3 is exposed even though the notice is not E-3-only
• Spouses and children
• What the proposal does not do
• How to read the comment deadline
• What to do with a job that is ending now

What the law still says {#current-rule}

The current rule is 8 CFR § 214.1(l)(2). It covers people admitted or otherwise given status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN, and their dependents.

Read it closely. It does not say “you get 60 days of work authorisation to find a new role.” It says the person shall not be considered to have failed to maintain nonimmigrant status solely because the employment that the classification was based on has stopped, for up to 60 consecutive days or until the end of the authorised validity period, whichever is shorter. That protection is available once during each authorised validity period. DHS may shorten it or eliminate it as a matter of discretion. And unless employment is separately authorised under 8 CFR § 274a.12, the person may not work during the period.

Three limits fall out of that text.

It is a status rule, not a work rule. You can remain in the United States during the period without that cessation of employment, by itself, being treated as a failure to maintain status. You cannot work for the old employer, and you cannot start with a new employer, unless some other authorisation already exists. For an E-3, that other authorisation is an approved petition or a visa admission for the new job. Filing is not enough. The difference from H-1B portability is covered in changing employers on an E-3.

It is the shorter of 60 days and the time left on the current admission. If the I-94 expires in 20 days, the regulation does not add 60 days on top. The period ends when the authorised validity period ends.

It is once per validity period, and it is discretionary at the back end. A new period of authorised stay can carry a new grace period. USCIS decides whether to shorten or refuse the period when it later adjudicates a benefit request, looking at the circumstances of the job ending and what the person did afterwards. The 2016 rule that created the period said that assessment is individual. Violations of status, unauthorised employment during the period, fraud, national-security concerns, and criminal convictions were among the examples USCIS gave for cutting it short. See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398, 82439 (18 November 2016).

That 2016 rule is the source of the grace period E-3 holders have now. It was effective on 17 January 2017. DHS has been clear, in the new notice, about what the period was for: so a worker whose job ended before the petition ran out could pursue another employer-sponsored classification, or the same classification with a new employer, without having to leave immediately, and so US employers could hire them more easily. Before 2017, the agency’s position was the opposite. Someone in these classifications whose job ended during the admission was generally treated as failing to maintain status from the day after the employment ended, and was expected to depart at once unless some other lawful basis to remain already existed.

What the notice would delete {#the-proposal}

The proposed regulatory text is short. DHS would amend 8 CFR § 214.1 by removing paragraph (l)(2) and renumbering the current paragraph (l)(3) as paragraph (l)(2). The paragraph that would survive is the one that lets a person in an authorised period under paragraph (l) apply for an extension of stay or a change of status if they are otherwise eligible. “Otherwise eligible” is the whole question. An extension or a change of status is ordinarily granted only if the person is still maintaining status when the request is filed. See 8 CFR § 214.1(c) and 8 CFR § 248.1. The grace period is what currently lets a filing made after the job has ended still be a filing made in status.

There is a second, technical change. DHS would revise 8 CFR § 204.5(p)(1)(i) so that an initial “compelling circumstances” employment-authorisation request no longer treats the 60-day period as a period of status. The revised cross-reference would point at the separate up-to-10-day period in paragraph (l)(1), and at other periods of admission authorised before a validity period begins or after it expires. That is a conforming edit. It does not create a new work permit for laid-off E-3 holders, and it does not abolish compelling-circumstances work authorisation as a category. Most E-3 holders are not in that category in the first place. It is aimed at a narrow group, generally people with an approved immigrant petition who can show compelling circumstances. It is not a substitute for the grace period.

The notice is explicit about the result it wants if the deletion is finalised. People in the listed classifications, and their dependents, would be considered to be failing to maintain nonimmigrant status the day after the principal’s employment or activity ends, unless they are otherwise authorised to remain. The preamble also says that, to avoid the consequences of failing to maintain status, the person and their dependents would have to depart on the day the employment or activity ceases. Those two sentences sit next to each other in the notice. They are the agency’s own description of a world with no 60-day buffer. They are not a description of the law today.

	Current regulation	Proposed rule, if finalised as written
Source	8 CFR § 214.1(l)(2), in force since 17 January 2017	Remove that paragraph. 91 FR 57807 (11 September 2026)
Who	E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, TN, and dependents	The same group. DHS considered dropping only some of them, and rejected that
After the job ends	Up to 60 consecutive days, or until the authorised validity period ends, whichever is shorter, once per validity period. DHS may shorten or eliminate it	No 60-day period. Failure to maintain status the day after the job ends, unless another lawful basis to remain already exists
Work	Not authorised during the period, unless a separate authorisation applies	Still no work authorisation from the mere fact that the old job has ended
Status of the text	Binding regulation	A proposal. Comments close 10 November 2026. No final rule and no effective date have been published

DHS also considered a shorter grace period, and a version that would keep the period but demand tighter evidence before USCIS would even look at it. It rejected both. A shorter period would still have to be measured and adjudicated. Stricter evidence would still leave people in the United States after the employment that justified the status had stopped. The notice says the point of the proposal is to put status and the underlying job back on the same clock.

Why USCIS says it wants the change {#why}

The statutory hook DHS uses for E-3 is INA § 101(a)(15)(E)(iii). An E-3 nonimmigrant is a person coming to the United States solely to perform services in a specialty occupation for the intending employer. The notice walks through the same kind of tie for E-1, E-2, H-1B, H-1B1, L-1, O-1, and TN. Its argument is that the 60-day rule “disconnects” lawful status from the employment that made the person eligible, and that the 2016 rule did not take that disconnect seriously enough.

The second reason is administrative. USCIS says officers have to work out whether a later filing is relying on the grace period, find the last day of the old job in payroll records that often do not state it, and then decide whether to shorten or refuse the period. The notice says that from the start of fiscal year 2018 through 20 May 2026, USCIS identified more than 1.9 million petitions and applications on which it potentially had to make that initial assessment. That figure is not a count of E-3 layoffs. It bundles I-129 extensions for new employment, certain changes of status, employment-based adjustments, and compelling-circumstances work-permit applications across every classification the grace period covers. USCIS itself says it cannot tell, when a case first arrives, which of those filings actually needed the grace period.

A narrower figure in the cost discussion is also not an E-3 number. DHS estimates that about 3,795 petitions, across E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN together, would be filed by a new employer for someone inside the grace period. The estimate is built from cases in which a prior I-129 was revoked because the first employer withdrew it. It is a modelling input. It is not a census of Australians who lose E-3 jobs.

The notice is frank that people and employers have relied on the current rule. Employers have planned on hiring someone who could stay in the country and take up the new job without a trip abroad. Workers and families have planned careers, housing, and schooling around a period of up to 60 days. DHS says it considered those reliance interests and thinks they are outweighed. It also says reliance is a weak claim because the current period can already be shortened or refused when a later application is decided. That last point is worth sitting with. Even under the regulation as it stands, the 60 days are not a guarantee you can bank on the morning you are dismissed and treat as settled until USCIS later agrees.

What “the day after” would mean for an E-3 holder {#day-after}

If the proposal becomes a final rule in this form, the practical sequence after an E-3 termination changes.

Status. The notice says the worker and dependents would be failing to maintain E-3 status the day after the job ends, unless something else already authorises them to stay. Failure to maintain status is a ground of deportability under INA § 237(a)(1)(C)(i). The notice cites that section on purpose. It is the status consequence, and it is separate from the question of whether a three-year or ten-year unlawful-presence bar has started.

Unlawful presence is not the same event. The notice points to USCIS’s 6 May 2009 memorandum on unlawful presence. For someone admitted until a specific date, unlawful presence for the INA § 212(a)(9)(B) bars generally runs from the day after the I-94 expires, or from the day USCIS or an immigration judge formally determines that the person violated status, if that determination comes first. A layoff, by itself, is not described in the notice as automatically starting the three-year or ten-year clock the next morning. Treating those as the same event is how this subject gets mis-explained. Falling out of status can still matter immediately: for a later extension or change of status, for discretion, and for removal. The bars are a further question, and they depend on time and on who makes a formal finding.

Work does not become available, and it does not stay available. The current grace period already forbids work. The proposal would not add a job-search employment authorisation. It would remove the period in which you can stay put, not working, while a new filing is prepared. An E-3 spouse’s ability to work is tied to the spouse being in valid dependent status. When the principal’s status ends, that dependent status ends with it. The family consequences are in E-3D dependent status.

A new in-country E-3 usually has to be filed while status still exists. Today, a new employer can file Form I-129 during the grace period, and a timely filing can carry the person past day 60 while USCIS decides the case. The person still cannot start the new job until the petition is approved. Under the proposal, that filing window closes when the old job does, because the regulation that treated the person as still maintaining status would be gone. The notice says someone in that position could look for another qualifying job and seek readmission later, after the approvals required for the new classification. For an E-3, that usually means a certified LCA and a visa application at a consulate, not an extension filed from a couch in New York after the old employment has already stopped. How those two paths differ is set out in changing employers and changing status from inside the United States.

There is a narrow regulatory exception for some extensions filed after status has already lapsed. 8 CFR § 214.1(c)(4) is the provision the notice points to. It is not a quiet replacement for a 60-day grace period, and it should not be planned around as if it were.

Why E-3 is exposed even though the notice is not E-3-only {#why-e3}

The notice is not an E-3 rule. E-3 is one line in a list. DHS looked at dropping the grace period for only some of the classifications and decided that would leave the same statutory problem in place for the ones it kept. Australians should still read it as an E-3 problem, for a mechanical reason.

H-1B portability is a statute. INA § 214(n) lets an H-1B worker begin new employment when the new employer’s petition is filed, before USCIS approves it. The notice does not repeal that statute. It mentions portability only to describe how H-1B employment is limited. E-3 was never given that rule. Congress tied E-3 eligibility to services for the intending employer and did not add a portability clause.

So the 60 days do different work for an E-3 holder than they do for an H-1B holder. On H-1B, a new petition can be filed and the person can often start work on the strength of the filing, including during the grace period. On E-3, the grace period is only a status bridge. The new job still waits for approval. A clean in-country change already needs a certified LCA, which is often about seven business days at the Department of Labor, and then a Form I-129. Premium processing, where it is available, is a 15-business-day adjudication clock after USCIS accepts the petition. That sequence does not fit inside a long weekend, and it often does not fit inside a two-week notice period. The E-3 timeline is the practical version of that arithmetic. The grace period is what makes an in-country change realistic after the old job has actually ended. Without it, the safe in-country sequence is the one that finishes, or at least is filed, while the current E-3 job is still alive. The other sequence is to leave and apply for a new E-3 visa abroad.

The notice also discusses return transportation for dismissed H-1B and O-1 workers, because those categories carry an employer obligation to pay the reasonable cost of return transportation if the person is dismissed before the authorised admission ends. The notice does not extend that discussion to E-3. Do not read an E-3 return-ticket right into this proposal. If that obligation matters in a particular H-1B comparison, it comes from the H-1B statute, not from this NPRM.

Spouses and children {#dependents}

The grace period covers dependents because their status depends on the principal’s. The 2016 rule said so, and the 2026 notice repeats it. During the current period, an E-3 spouse and unmarried children under 21 are treated as maintaining status while the principal is. The end of a spouse’s own job, if the spouse is working on the back of E dependent status, does not by itself end the principal’s E-3. The notice is explicit about that direction of travel. The dependency runs from the principal’s job to the family, not the other way around.

If paragraph (l)(2) is removed, the notice says dependents fail to maintain status on the same day the principal does: the day after the principal’s employment ends, unless some independent basis to remain applies. A spouse who is working because they are in E dependent status would lose that basis at the same time. A child in school on dependent status would be in the same position. None of that is the law while the current regulation remains in force. It is the result the notice describes if the deletion is finalised as drafted.

What the proposal does not do {#does-not}

A few boundaries are easy to miss because the headline is broad.

It does not repeal the up-to-10-day period. 8 CFR § 214.1(l)(1) can add up to 10 days before an E-3 validity period begins and up to 10 days after it ends. The notice leaves that paragraph alone. It also says the 10 days run after the validity period ends, so they do not cover a job that stops in the middle of an otherwise valid admission. They are not a smaller version of the layoff grace period.

It does not take effect when the comment period ends. A notice of proposed rulemaking is a request for comment. The Administrative Procedure Act process is that DHS reads the comments and then either publishes a final rule, changes the proposal, or withdraws it. The 11 September notice does not contain an effective date for the deletion. Until a final rule is published and reaches its own effective date, 8 CFR § 214.1(l)(2) is the rule adjudicators and applicants have.

It does not change the E-3 cap, the LCA, or the specialty-occupation test. Those sit in other statutes and in Department of Labor rules. The notice even flags a separate Labor Department proposal on prevailing wages for H-1B, H-1B1, and E-3, and says the two notices overlap in population but do not conflict. This article is about the grace period only.

It does not stop a future E-3. The notice says the numerical limits, where they exist, would likely be unchanged, and that a person could apply again for admission after a new approval. For Australians, a new E-3 from outside the United States remains a real path: certified LCA, consular visa, admission. What the proposal would remove is the ability to treat the weeks after a US layoff as a period of maintained E-3 status.

How to read the comment deadline {#comments}

Comments are due on or before 10 November 2026. The electronic system accepts them until midnight Eastern time that day. The docket is USCIS-2026-0364, and the portal named in the notice is regulations.gov. Comments have to be in English, or accompanied by an English translation. USCIS says it is not accepting mailed comments, courier deliveries, or comments stored on a disk or USB drive. Emails and letters sent to officials are not treated as comments on the rule.

The notice asks commenters to point at a specific part of the proposal and to include data or authority for any change they want. It specifically invites comment on reliance interests. That is the section where employers, workers, and families who have planned around the 60 days are actually being asked to respond. Comments are posted publicly. The notice says personal information in a comment is public, and that DHS may withhold material it decides affects someone’s privacy.

Signing up for docket alerts on regulations.gov is the direct way to see a final rule if one is published. Secondary summaries are not a substitute for the official PDF.

What to do with a job that is ending now {#now}

The operational advice splits on whether the proposal has become law. It has not.

If the job is ending under the current regulation, the grace period still exists, with the limits above. Do not work during it. Do not start the next E-3 job when the new petition is filed. If a new employer is real, the useful clock is the date a proper I-129 is filed, not the date of the offer. If there is no new employer, the other moves that the 2016 framework contemplated were a change to some other nonimmigrant classification, or departure. None of those is something to invent on day 50. The existing discussion of that sequence is in changing employers on an E-3.

If you are still employed and the only risk is that this proposal might later become final, the in-country change that is already the conservative one becomes more important, not less. Get the LCA moving before you resign. Do not give notice on the assumption that a 60-day cushion will still exist on the day you need it, and do not give notice on the assumption that it has already been abolished. Both assumptions are wrong in September 2026. One may become wrong later. The filing that is already approved, or at least already on file while the current job continues, does not depend on which way the final rule goes.

If you read that the grace period “has been eliminated,” check the date and the document type. A Federal Register notice labelled “proposed rule,” with a comment deadline, is not the same document as a final rule with an effective date. The page to trust is the 11 September 2026 PDF, read against the current text of 8 CFR § 214.1.

A layoff, a spouse’s work authorisation, a child in school, and a half-finished green card are different cases. The regulation draws those lines more carefully than a headline does. If your employment is actually ending, or you are about to resign into a new E-3, book a consultation and bring the I-94, the LCA end date, and the date the employment stops. Those three dates decide which version of this article you are in.

Related reading

• Changing employers on an E-3, including the current grace-period rules and why E-3 has no H-1B portability
• E-3D status for spouses and children
• Changing status from inside the United States
• The E-3 timeline
• The complete E-3 visa guide