By Bernard Wolfsdorf
A proposed Department of Homeland Security (DHS) regulation currently undergoing federal review could eliminate the 60-day grace period following termination of employment for H-1B workers and several other nonimmigrant classifications.
If finalized as proposed, the change could have particularly significant consequences for Indian professionals who have already spent years — and in many cases face many more years — waiting for employment-based permanent residence.
Today, an H-1B worker whose employment ends before the expiration of their authorized stay may generally benefit from a discretionary grace period of up to 60 days. That window provides critical time to secure a new employer, pursue another immigration status, or prepare for an orderly departure from the United States.
The proposed rule could eliminate that safety net
The proposal remains under review by the federal Office of Management and Budget (OMB), and its precise terms will not be known until the proposed regulation is published in the Federal Register. No change has taken effect yet.
Following publication, the proposal is expected to undergo a public comment period before DHS can issue a final rule.
If DHS ultimately eliminates the 60-day grace period, however, an H-1B worker who is laid off could cease maintaining nonimmigrant status when the qualifying employment ends, absent another basis for lawful stay or discretionary relief. This could sharply restrict the worker’s ability to remain in the United States while searching for another employer and could create an immediate immigration-status issue and increase exposure to enforcement or removal proceedings.
The potential change is particularly consequential for Indian nationals caught in the employment-based green card backlog.
The August 2026 Visa Bulletin illustrates the severity of the problem. India EB-3 has a January 1, 2014, Final Action Date, while India EB-2 is unavailable for final action for the remainder of FY2026, as the annual allocation has been exhausted.
For foreign professionals who have built careers, families, and lives in the United States while waiting for permanent residence, continued H-1B employment can therefore remain the foundation of their ability to stay in the country. Removing the 60-day employment-termination cushion could transform an unexpected layoff from a career disruption into an immediate immigration-status crisis.
EB-5 may offer an independent path, but a critical deadline is only days away
For qualifying Indian nationals with the financial ability and appropriate circumstances to pursue the EB-5 immigrant investor program, the proposed H-1B change underscores the importance of evaluating an independent path to permanent residence that is not tied to continued employment with a particular employer.
There is also an unusually important timing consideration.
As of August 12, 2026, only 49 days remain before the September 30, 2026, EB-5 grandfathering deadline.
Under the EB-5 Reform and Integrity Act (RIA), qualifying EB-5 petitions filed on or before September 30, 2026, receive statutory grandfathering protection intended to permit continued adjudication notwithstanding a future lapse in Regional Center Program authorization. The Regional Center Program is currently authorized through September 30, 2027; September 30, 2026, is the separate, earlier statutory grandfathering deadline.
For eligible investors already lawfully present in the United States, EB-5 may provide another important planning opportunity: concurrent filing. Where an immigrant visa is immediately available, and the applicant otherwise qualifies to adjust status, an investor may be able to file the EB-5 immigrant petition together with Form I-485, Application to Register Permanent Residence or Adjust Status.
This distinction is especially important for Indian nationals. While the employment-based backlogs remain extraordinarily long, the EB-5 rural, high-unemployment-area, and infrastructure reserved categories are currently available for India under the August 2026 Visa Bulletin.
For an eligible investor pursuing a qualifying reserved-category EB-5 investment, concurrent filing may therefore provide a pending adjustment of status case and access to related benefits, subject to individual eligibility. Most importantly, it can provide a potential immigration strategy that is not dependent on remaining employed by the same H-1B employer throughout a decade-long green card wait.
The time to evaluate EB-5 is now
Prospective investors should not view September 30 as the date to begin considering EB-5.
An EB-5 filing can require investment and project due diligence, documentation of the lawful source and path of investment funds, preparation of the immigrant petition, and careful analysis of adjustment-of-status eligibility. These steps take time.
With only 54 days remaining before the statutory grandfathering cutoff, Indian nationals considering EB-5 — particularly long-term H-1B professionals facing years or decades in the employment-based green card backlog — should evaluate their options now.
The convergence of several developments makes this an important planning moment:
- A proposed elimination of the 60-day post-employment grace period.
- Extraordinary EB-2 and EB-3 backlogs for Indian nationals.
- Current visa availability in the EB-5 reserved categories.
- The possibility of concurrent EB-5 and adjustment of status filings for qualifying applicants.
- The rapidly approaching September 30, 2026, EB-5 grandfathering deadline.
For Indian professionals who have spent years maintaining H-1B status while waiting for an employer-sponsored green card, the question may no longer be how long they are prepared to wait.
It may also be how much immigration risk they are prepared to carry while waiting. Prospective EB-5 investors who may qualify for concurrent filing should act now.
For Indian professionals who have spent years maintaining H-1B status while waiting for an employer-sponsored green card, the question may no longer simply be how long they are prepared to wait.
It may also be how much immigration risk they are prepared to carry while waiting.
Prospective EB-5 investors who may qualify for concurrent filing should act now.
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
