H-1B Grace Period and Fees: Law vs Proposal

What is the H-1B 60-day grace period?

The grace period is a safety margin for workers whose job ends early. Under 8 CFR 214.1(l)(2), a person in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status, and their dependants, is not considered to have failed to maintain status solely because the job ended, for up to 60 consecutive days or until the end of the authorised validity period, whichever is shorter, once in each validity period ^[3]. DHS may shorten or eliminate the period at its discretion, and the person may not work during it unless otherwise authorised ^[3].

USCIS describes the practical use on its H-1B page: a worker who is laid off, fired or quits may have up to 60 consecutive days, or until the end of the validity period if shorter, to find new employment, change status or leave the country ^[4].

The grace period was created by the so-called AC21 final rule, effective on 17 January 2017 ^[1]. Before 2017 there was no grace period of this kind for these workers ^[1].

A separate, shorter grace period also exists. Under 8 CFR 214.1(l)(1), H-1B, L-1, E and TN workers can be admitted for up to 10 days before and 10 days after their validity period ^[3]. That provision is not part of the DHS proposal discussed below ^[1].

Is DHS ending the 60-day grace period?

DHS has proposed to, but it has not happened. On 11 September 2026 the Federal Register published a notice of proposed rulemaking titled Eliminating the Discretionary 60-Day Grace Period (91 FR 57807, RIN 1615-AD22, docket USCIS-2026-0364) ^[1]. It would remove paragraph (l)(2) from 8 CFR 214.1 ^[1].

The comment period ended at midnight Eastern time at the end of 10 November 2026 ^[1]; regulations.gov records the docket as closed for comment ^[2]. By 12 November 2026 the docket had 34,302 comments, according to the Federal Register's record of it ^[1]. DHS must now review the comments before it can issue a final rule, and no final rule has been published as of 13 November 2026.

DHS gives two reasons ^[1]:

• It says the grace period disconnects a worker's status from the employment that is the legal basis for it, and that the statute ties these classifications to that employment.
• It says checking whether the grace period applies is an administrative burden: from 1 October 2017 to 20 May 2026, more than 1.9 million petitions or applications potentially required that assessment.

If the rule became final as proposed, a worker and their dependants would be considered out of status from the day after the job ends, unless otherwise authorised to remain ^[1]. DHS acknowledges that some people could face lost income and notices to appear in removal proceedings, and that employers and families may have relied on the grace period ^[1]. It considered shortening the period or ending it for only some classifications, and rejected both options ^[1].

How many workers use the grace period?

DHS does not have a direct count, so it uses a proxy: workers whose approved Form I-129 petition was withdrawn by the employer, which includes people who lost a job or changed employer ^[1].

• DHS estimates an average of 65,752 such primary beneficiaries a year in fiscal years 2021 to 2025, ranging from 40,959 in 2021 to 80,034 in 2023 ^[1].
• Of 328,758 such workers over the five years, 99% were in H-1B status ^[1].
• Within 60 days of the withdrawal, 5.77% had a new Form I-129 filed by a new employer, 1.70% filed Form I-539 to extend or change status, 0.59% filed to adjust to permanent residence, and fewer than 0.1% applied for a compelling-circumstances work permit ^[1].

These shares describe filings within 60 days, not everyone who benefited from the grace period, and DHS notes the data limits ^[1]. They do show that the people most directly affected would be H-1B workers between jobs.

Is the $100,000 H-1B payment in effect?

The payment exists on paper but is blocked in court. On 19 September 2025, Proclamation 10973 required certain new H-1B petitions filed from 12:01 a.m. Eastern on 21 September 2025 to be accompanied by a $100,000 payment ^[4][5]. According to USCIS, it covers petitions for workers outside the United States without a valid H-1B visa, and not extensions or changes of status granted inside the country ^[4]. On 18 September 2026, Proclamation 11069 extended the restriction for 12 months, until 21 September 2027; it says the payment had been made for over 700 petitions ^[5].

Three federal courts have ruled so far, according to the Northern District of California's order of 30 September 2026 ^[6]:

• District of Columbia: in Chamber of Commerce v. DHS, the district court upheld the proclamation and the fee. That case is on appeal in the D.C. Circuit ^[6].
• District of Massachusetts: in California v. Mullin, the court vacated the agency guidance implementing the payment on 8 June 2026. The First Circuit denied the government's request to pause that order on 24 July 2026 ^[4][6].
• Northern District of California: in Global Nurse Force v. Trump, the court on 30 September 2026 vacated the agency policies and barred their enforcement under both proclamations until notice-and-comment rulemaking and a regulatory flexibility analysis are completed ^[6]. The government filed a notice of appeal to the Ninth Circuit on 9 October 2026 ^[7].

USCIS says DHS strongly disagrees with the Massachusetts order but will comply with it, and still plans to collect the payment if the order is later lifted ^[4]. The California court described the $100,000 fee as no longer in effect because of the Massachusetts vacatur ^[6]. In a filing on 19 October 2026, the government noted that appeals were pending in the Ninth, First and D.C. Circuits ^[12].

What is the proposed $103,265 H-1B fee?

This is a separate measure based on different legal authority. A proposed rule published on 25 August 2026 would set a $103,265 fee for every H-1B cap-subject petition, including those under the advanced degree exemption, payable at filing and in addition to all other fees ^[8][9]. Cap-subject petitions are those counted against the annual limit of 65,000 new H-1B visas or grants of status, plus 20,000 for holders of US master's or higher degrees ^[9].

The fee would not apply to cap-exempt petitions, such as those filed by institutions of higher education, nonprofit research organisations and governmental research organisations ^[9]. DHS calculated the amount by dividing about $8.78 billion in costs to be recovered by a projected 85,000 fee-paying petitions, and says it would raise about $8.8 billion a year ^[8][9].

The proposal states that where an employer is subject to both a proclamation payment and this fee, it would have to pay both ^[8]. It acknowledges that the fee is close to the $100,000 payment but says it rests on DHS's fee-setting authority, not the proclamation ^[8].

Status: the comment period closed on 24 September 2026 ^[8]. As of 13 November 2026, no final rule has appeared in the Federal Register, so the $103,265 figure is still a proposal, not a fee anyone has to pay today ^[8].

Which H-1B fee changes are already in force?

One recent change is final. A rule published on 10 August 2026 and effective on 9 September 2026 requires covered employers to pay the 9-11 Response and Biometric Entry-Exit Fee on all H-1B and L-1 extension petitions, not only on initial petitions and changes of employer ^[10]. A covered employer is one with 50 or more employees in the United States, more than half of whom hold H-1B or L-1 status ^[4]. The fee is $4,000 for H-1B petitions and $4,500 for L-1 petitions ^[10]. It does not apply to an amended petition that does not seek to extend the worker's current status ^[4].

USCIS says petitions postmarked or submitted electronically on or after 9 September 2026 must include the fee where required ^[4].

Other existing charges include the Asylum Program Fee of $600 introduced in 2024 for Form I-129 petitioners ^[8]. The full and current list of H-1B filing fees is on USCIS's Form G-1055 fee schedule, which USCIS updated on 28 October 2026 ^[11]. Fee amounts change, so the schedule on the filing date is what counts.

What is law, what is proposed and what is blocked?

The table below sorts each measure by its legal status as of 13 November 2026, with the official source for each.

Two points are easy to miss. First, a proposed rule has no legal effect until DHS publishes a final rule with an effective date; comment deadlines passing does not change that ^[1][8]. Second, a court order can change quickly on appeal, so the status of the $100,000 payment depends on decisions still to come in three appeals courts ^[6][12].

This guide covers only the grace period and filing fees. The separate DHS proposal to stop giving deference to prior approvals when extensions are reviewed is explained in the guide on H-1B extensions and the DHS proposal to end deference.

What should H-1B workers and employers watch next?

• Final rules. Either the grace period rule or the $103,265 fee rule could be finalised. Each would appear in the Federal Register with an effective date and responses to comments ^[1][8].
• Appeals. Rulings from the First, Ninth or D.C. Circuit could revive or further limit the $100,000 payment ^[6][7]. USCIS has said it would collect the payment if the Massachusetts order is lifted ^[4].
• USCIS alerts. USCIS posts changes on its H-1B page and fee schedule, and those pages are the safest check before filing ^[4][11].

Until something changes, the position is: grace period available, $100,000 payment blocked, $103,265 fee not adopted, and the wider 9-11 Biometric Fee in force for covered employers ^{[3][4][8][10]}.