Navigating Potential DHS Changes: What the Proposed Elimination of the H-4 EAD and 60-Day Grace Period Means for Foreign Professionals

By Wendy R. Barlow, Esq. | Partner at Cohen, Tucker + Ades Specializing in Complex Immigration Matters

Key Takeaways

• The Proposal: DHS has submitted proposed rules aimed at eliminating the discretionary 60-day grace period following employment termination and ending employment authorization for H-4 dependent spouses.
• Current Status: These regulations are proposals under federal review. They are not immediate law, and current grace period and H-4 EAD rules remain in effect today.
• Action Required: Affected visa holders and employers should begin analyzing alternative visa categories and status maintenance options now to protect against sudden regulatory shifts.

What are the proposed DHS immigration changes for H-1B and H-4 holders?

1. Elimination of the 60-Day Nonimmigrant Grace Period: Currently, when an H-1B, L-1, O-1, or TN worker experiences job termination, they receive up to 60 days (or until their I-94 expiration, whichever is shorter) to find a new employer sponsor, apply for a status change, or prepare to depart. The proposed rule seeks to remove this safety buffer.
2. Termination of the H-4 Employment Authorization Document (EAD): First introduced under the Obama administration, the H-4 EAD allows spouses of H-1B visa holders undergoing green card processing to work legally in the U.S. Current policy proposals aim to rescind this work authorization program.

How will removing the 60-day grace period affect H-1B visa holders?

• Immediate Unlawful Presence: Lacking a grace period, staying in the country past your final day of work could initiate the accrual of unlawful presence.
• Truncated Job Searches: Workers would no longer have time to secure a new H-1B change-of-employer petition while remaining in the U.S.
• Dependents Impacted: Spouses and children on H-4 status linked to the principal H-1B holder would face immediate status jeopardy.

What is the timeline for these proposed immigration changes?

Important Note: Existing regulations remain active today. H-4 spouses with valid EADs can continue working, and eligible workers who face job separation can still utilize the current 60-day grace period while rule-making continues.

What visa alternatives should H-1B and H-4 holders consider?

• O-1A Visa for Extraordinary Ability: Highly accomplished tech workers, researchers, and business leaders may qualify for an O-1A visa, which is not subject to cap limits or the same spousal employment restrictions.
• Transition to F-1 (Student Status) or B-1/B-2 (Visitor): For workers facing unexpected job loss, changing status to a visitor or student visa can preserve lawful presence while searching for new opportunities.
• Concurrent H-1B / Alternative Nonimmigrant Statuses: Employers and professionals can explore secondary petition filings or category shifts (such as TN, E-3, or L-1) depending on nationality and professional role.
• EB-1 / National Interest Waiver (NIW): Bypassing traditional PERM labor certification through an EB-1 or EB-2 NIW self-petition can establish an independent track toward lawful permanent residence.

Protect Your Status: Schedule an Alternative Options Assessment with Cohen, Tucker + Ades