The Trump Administration’s New Immigration Target: Highly Skilled Professionals
The Trump Administration’s immigration agenda has largely been associated with increased arrests, detention, removal proceedings, and its stated objective of carrying out large-scale deportations. But the Administration’s approach to immigration is not limited to undocumented immigrants or individuals already facing removal. A new proposal from the Department of Homeland Security (DHS) would directly affect professionals who entered the United States legally, obtained employment-based nonimmigrant status, and have been working for American employers under federal immigration law. DHS is now proposing to eliminate the 60-day discretionary grace period currently available to certain workers after their qualifying employment ends.
The proposed rule would affect individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications, as well as their dependents. If finalized as proposed, the rule would eliminate an important protection that currently gives many workers a limited period after termination of employment to find a new employer, pursue another immigration option, or prepare to leave the United States. Instead, the end of qualifying employment could result in the worker beginning to fail to maintain status almost immediately, unless another lawful basis exists for the individual to remain in the country.
It is important to emphasize that this rule is not currently in effect. DHS has issued a Notice of Proposed Rulemaking, and the existing regulatory framework remains in place unless and until the agency completes the rulemaking process and adopts a final rule. Comments on the proposal are due November 10, 2026, under DHS Docket No. USCIS-2026-0364. Nevertheless, the proposal is significant because it provides another indication of the direction in which the Administration is attempting to move the immigration system, including the legal immigration system.
What the Current 60-Day Grace Period Provides
Under 8 C.F.R. § 214.1(l)(2), certain employment-based nonimmigrants whose employment or qualifying activity ends may receive a discretionary grace period of up to 60 consecutive days, or until the end of their authorized validity period, whichever is shorter. The grace period is not an automatic guarantee of 60 days in every case, but it provides an important measure of flexibility for workers whose immigration status is connected to their employment.
The practical importance of that protection should not be underestimated. A professional who is unexpectedly laid off may need time to secure another employer willing to file the appropriate petition, determine whether a change to another nonimmigrant classification is possible, or evaluate other lawful immigration options. Those decisions often cannot reasonably be made on the same day that employment ends. The worker may also have a spouse and children whose immigration status depends on the principal worker, a lease or mortgage, children enrolled in school, and years of professional and personal ties to the United States. The current regulation recognizes, at least to a limited degree, that termination of employment does not occur in an immigration vacuum.
The proposed rule would remove that flexibility. DHS states that affected nonimmigrants and their dependents would begin failing to maintain status immediately following the cessation of the principal worker’s qualifying employment or activity. To avoid the consequences associated with failing to maintain status, an affected worker may need to depart the United States when the qualifying employment ends unless the person is otherwise authorized to lawfully remain.
Turning a Layoff Into an Immigration Crisis
The practical consequences are easy to understand. Consider an H-1B professional who has lawfully lived and worked in the United States for several years and is unexpectedly laid off during a corporate restructuring. Under the existing regulation, that individual may have a limited opportunity to locate another employer and pursue a new petition without immediately having to uproot his or her life in the United States. If DHS eliminates the grace period, the same employment decision could create an almost immediate immigration problem.
This is particularly concerning because layoffs are frequently outside the employee’s control. A worker can comply with every immigration requirement, maintain valid status, work only as authorized, pay taxes, and follow the rules established by the federal government, yet still lose employment because of a corporate merger, reduction in force, economic downturn, restructuring, or an employer’s independent business decision. Under the proposed framework, an event entirely outside the immigrant worker’s control could have immediate consequences for the worker’s immigration status and, in many cases, the status and stability of the worker’s family.
That result also complicates a familiar political argument surrounding immigration: that people who want to live and work in the United States should simply “do it legally.” The workers affected by this proposal did use the legal immigration system. H-1B professionals were petitioned for by U.S. employers. L-1 employees were transferred through authorized multinational employment structures. O-1 beneficiaries qualified under standards applicable to individuals of extraordinary ability or achievement. TN professionals entered pursuant to a classification created through the United States’ trade relationship with Canada and Mexico. E classifications facilitate treaty-based trade, investment, and professional employment. These workers did not circumvent the immigration system; they entered and worked pursuant to it.
DHS Says the Proposal Will Reduce Administrative Burdens
DHS argues that the existing grace period is inconsistent with the employment-based nature of these classifications because the underlying nonimmigrant status is connected to continued qualifying employment or activity. The agency also maintains that eliminating the grace period would reduce administrative burdens on USCIS by eliminating the need for adjudicators to determine whether a worker qualifies for the discretionary grace period and whether a subsequent filing should be treated as timely.
There is, however, an important weakness in the administrative-efficiency argument. DHS itself acknowledges that some affected individuals may receive Notices to Appear (NTAs) and incur costs associated with proceedings before the Executive Office for Immigration Review. If eliminating the grace period results in additional individuals immediately failing to maintain status and some of those individuals entering removal proceedings, then the government may not actually be eliminating administrative work. It may instead be transferring some of that work from the immigration benefits system to the immigration enforcement and removal system.
Removal proceedings require government resources. They can involve DHS enforcement personnel, government attorneys, immigration judges, court staff, interpreters, hearings, motions, applications for relief, and potentially administrative and federal judicial review. Against that background, the claim that eliminating the grace period simply promotes efficiency deserves careful scrutiny. Reducing the number of grace-period determinations performed by USCIS may be an administrative savings for one component of DHS, but that does not necessarily mean that the immigration system as a whole will experience a corresponding reduction in workload.
More importantly, the person on the other side of that administrative calculation is a worker who may have gone from lawful professional employment to potential immigration enforcement consequences because an employer terminated the employment relationship.
The Proposal Must Be Viewed in the Broader Immigration Context
The proposal also should not be considered in isolation from the Administration’s broader immigration policies. The Trump Administration has pursued an aggressive immigration-enforcement agenda while simultaneously seeking changes affecting lawful immigration pathways. The proposed elimination of the 60-day grace period is significant precisely because it demonstrates that increased immigration restrictions are not confined to individuals who entered the United States without authorization or who already have final orders of removal. They also reach professionals who were lawfully admitted, sponsored by American businesses, and authorized by the federal government to work in the United States.
That broader context matters. For years, immigration policy has often been discussed as though there were a simple distinction between unauthorized immigration and a legal system that remains available and predictable for those who follow the established process. Measures such as this one complicate that narrative. When a worker follows the law, obtains the appropriate visa classification, maintains authorized employment, and builds a professional life in the United States, but nevertheless faces the possibility of almost immediate immigration consequences following an unexpected layoff, the issue is no longer simply enforcement against unlawful immigration. It becomes a policy choice about how much stability the United States is willing to provide to people who have complied with its legal immigration system.
DHS’s Own Numbers Show That the Grace Period Matters
The existing grace period is not merely a theoretical protection. DHS estimates that approximately 3,795 Form I-129 petitions would be filed by new petitioners for beneficiaries during the current 60-day discretionary grace period. Those numbers represent actual employment transitions involving workers already present in the United States and employers seeking to hire them.
Under the current framework, those workers may be able to transition to new qualifying employment without first leaving the country. Eliminating the grace period could require some workers to depart the United States, continue their employment search from abroad, complete additional immigration processing, and later seek readmission after obtaining new qualifying employment. That process may impose costs not only on workers and their families but also on U.S. employers attempting to recruit professionals who are already trained, established, and available in the domestic labor market.
DHS acknowledges some of these costs in the proposed rule. The agency recognizes that affected workers may lose income while searching for new employment and may incur expenses associated with departing and later seeking readmission. The proposal therefore involves a policy tradeoff. DHS may reduce certain USCIS adjudications, but workers, families, employers, and potentially other parts of the immigration system may bear the resulting costs.
A Significant Shift in the Treatment of Legal Immigration
DHS relies in part on the proposition that employment-based nonimmigrant status depends upon continued compliance with the conditions of the applicable classification. The proposed rule cites ITServe Alliance, Inc. v. U.S. Department of Homeland Security, 71 F.4th 1028 (D.C. Cir. 2023), including the court’s discussion of the relationship between qualifying H-1B employment and continued nonimmigrant status. DHS therefore argues that allowing a worker to remain for a discretionary period after qualifying employment ends is inconsistent with the employment-based character of the classification.
But the legal question of whether DHS possesses authority to modify its regulation is different from the policy question of whether eliminating the grace period is necessary, reasonable, or beneficial to the immigration system. The federal government has long exercised discretion in administering immigration law, and the existing grace period itself reflects a policy judgment that a limited transition period can coexist with employment-based nonimmigrant classifications. DHS could have pursued narrower alternatives. Indeed, the agency considered eliminating the grace period only for certain classifications but rejected that approach.
The Administration has instead proposed eliminating the protection across the covered categories. That decision deserves scrutiny because the consequences extend beyond abstract questions of regulatory administration. They affect the ability of businesses to retain talent, the ability of professionals to transition between employers, and the stability of families whose lawful presence in the United States may depend on the principal worker’s employment.
What Highly Skilled Workers Should Know Now
For workers currently in H-1B, L-1, O-1, TN, E, or another affected classification, the most important point is that the proposed rule has not yet changed the law. The existing 60-day discretionary grace period remains available under the current regulation, subject to its requirements and DHS discretion. Workers should not assume that they must immediately depart simply because this proposal has been announced.
At the same time, the proposal is a reminder that employment-based immigration status can be vulnerable to rapid policy changes. Individuals whose status depends on continued employment should understand their authorized period of stay, the terms of their particular classification, and the immigration options that may become available if their employment unexpectedly ends. If the proposal ultimately becomes final, the amount of time available to obtain legal advice and take action following termination could become substantially shorter.
The Bottom Line
The Trump Administration’s proposal to eliminate the 60-day grace period is more than a technical amendment to an immigration regulation. It would alter an important protection relied upon by highly skilled professionals who are legally living and working in the United States and could transform an ordinary employment event—losing a job—into an immediate immigration problem.
DHS argues that the change would better align employment-based immigration classifications with their statutory purpose and reduce administrative burdens. But the agency also acknowledges consequences that include lost income, international departures, costs associated with seeking readmission, and the possibility that some affected individuals could receive NTAs and become involved in removal proceedings. Those consequences deserve serious consideration before a regulation that provides workers with a modest period of stability is eliminated.
The proposal also sends a broader message about the current direction of federal immigration policy. The debate is no longer confined to border enforcement or the removal of undocumented immigrants. Increasingly restrictive policies can affect people who entered legally, obtained lawful status, secured professional employment, and complied with the immigration system established by the United States itself.
For now, the 60-day grace period remains in place. But if this proposal becomes final, highly skilled professionals may discover that following the legal immigration process provides
considerably less stability after an unexpected job loss than it does today.
Make Your Voice Heard
This proposal is not yet final, and the public has an opportunity to respond. DHS is accepting comments through November 10, 2026, under DHS Docket No. USCIS-2026-0364. If you are a worker, family member, employer, or other person who would be affected by eliminating the 60-day grace period, you can submit a comment through Regulations.gov explaining how this change would affect you, your family, your employees, or your business.
If you disagree with this proposal, make your voice part of the official record. Explain why a reasonable transition period after an unexpected job loss matters and what eliminating it would mean in the real world. The deadline to submit comments is November 10, 2026.
Your voice matters. Use it.
Concerned About Your Immigration Status After a Layoff?
If you are in H-1B, L-1, O-1, TN, E, or another employment-based nonimmigrant status and have recently lost your employment, or believe that a termination may be coming, obtaining individualized immigration advice early can be particularly important. The immigration consequences and available options depend on the particular classification, authorized period of stay, immigration history, and timing of any subsequent filing. The Viera Law Firm, PLLC assists immigrants and their families in navigating an increasingly complex U.S. immigration system.
Your voice. Your rights. Our mission.
This article is provided for general informational purposes only and does not constitute legal advice. Immigration laws, regulations, and policies are subject to change. Reading this article does not create an attorney-client relationship.
Access the full proposed rule at the link below:
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