Frequently Asked Questions

No, reference letters are not strictly required. However, they are a very strong form of supporting evidence and help USCIS understand your impact from multiple perspectives. Most NIW petitions include 3–4 well-chosen letters that balance work-based, academic, and independent viewpoints.

Work-based letters (from a manager or supervisor) should discuss at least one specific project where your role and contributions are clear. The letter should explain both how you helped the company and how your work had value beyond the employer. For example, industry adoption, technological advancement, or societal benefit.

Because NIW is not just one of the things we do, it is a major focus of our practice. We study trends, Requests for Evidence (RFEs), and the constantly shifting climate around this visa type every single day. That depth of focus means we’re always adapting strategies to what officers are actually looking for right now.

Absolutely not. We have no mold and no template. Every application is custom-built. Even two people in the same exact field will end up with very different petitions, because your NIW should reflect your unique story, goals, and contributions.

The balancing test asks whether, on balance, it benefits the United States more to waive the job offer and labor certification requirements than to enforce them. In other words, USCIS weighs the protection of the U.S. labor market against the national interest in allowing you to advance your proposed endeavor without going through the employer-driven process.

Many NIW petitioners work in areas that are entrepreneurial, highly specialized, or cross-disciplinary, fields where a labor certification cannot accurately capture the unique skills required. If your endeavor involves cutting-edge research, innovation, or self-employment, it is often not feasible to have an employer define and test the labor market for your role.

Prong 3 focuses on why your contributions cannot simply be replaced by another worker with “minimum qualifications.” We highlight the specific expertise, achievements, or innovations that make you stand out, the qualities that cannot be adequately described in a standard job posting or labor certification.

Being “well positioned” means that your background, skills, and achievements clearly show you are capable of carrying out your proposed endeavor. USCIS doesn’t require proof that you will succeed, but they want to see you have the education, experience, track record, and recognition to make your plan credible.

Your academic background, technical training, and years of work experience form the foundation of this argument. We highlight degrees, certifications, and specialized training, then connect them directly to your proposed endeavor to show that you have the knowledge base to advance it.

“Substantial merit” means that your proposed work has value in areas like business, science, technology, health, culture, or education. Importantly, merit can be shown even without immediate economic impact. For example, research, pure science, or knowledge advancement can qualify.

“National importance” means that your work goes beyond your company or local region and has broader implications for the U.S. It can be nationally important if it strengthens an industry, improves public health, supports innovation, or contributes to U.S. competitiveness, even if you are based in one location.

The strongest evidence isn’t just job descriptions; it’s proof of results. USCIS gives more weight to documentation that shows the impact of your work. This can include metrics (like growth data, efficiency gains, or patents), press releases announcing successful projects, or media coverage highlighting company achievements. Since many of these documents don’t name individual contributors, you should tie yourself to those outcomes through a reference letter from a manager or colleague that explains your role in achieving them.

If internal company records are unavailable, focus on public-facing proof of results, such as archived press releases, product announcements, or independent media articles about projects you worked on. Then connect yourself to those outcomes with a supporting reference letter from someone who can credibly confirm your role. This combination, public proof of impact plus testimony tying you to it, is often the most effective way to document past roles.

Your proposed endeavor is your future plan to impact the United States through your work. It’s not your job title, it’s the specific activities, goals, or projects you will pursue that have substantial merit and national importance and is mission based. USCIS officers want to see how your work will contribute to a field, industry, or societal challenge beyond your employer.

While not a strict requirement, it is always helpful if there is a match. There should be a logical connection between your background and your future plans. USCIS looks at your education, skills, and track record to decide if you are well-positioned to advance the endeavor. Even if your future plan is broader than your past roles, you need to show that your prior work builds credibility for what you want to do next.

Yes. You do not need to be physically in the U.S. to apply. If abroad, you would complete the process through consular processing once your I-140 NIW petition is approved and a visa number becomes available.

To qualify for a National Interest Waiver, you must first qualify under the EB-2 immigrant category. There are two separate ways to do this:

1. Advanced Degree Route

• A U.S. master’s degree or higher (or foreign equivalent), or

• A U.S. bachelor’s degree (or foreign equivalent) plus at least five years of progressive, post-degree experience in the specialty, which USCIS treats as equivalent to a master’s degree

1. Exceptional Ability Route

• You can qualify even without an advanced degree if you can show “exceptional ability” in the sciences, arts, or business.

• Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in your field.

• To establish this, you must satisfy at least three of the six regulatory criteria (such as 10 years of experience, professional recognition, a high salary, or memberships in professional associations) and pass a final merits determination where USCIS evaluates the overall quality of your claim.

• You do not need any formal education, though formal education still helps.

Both options can work, but if you already hold a U.S. master’s degree or higher (or a foreign equivalent), the advanced degree route is usually the stronger and smoother choice. USCIS officers are very familiar with this pathway, and the evidence is easy to prove with diplomas, transcripts, and evaluations. If you have a master’s or above, this usually leaves little room for an officer to question whether you meet the baseline EB-2 requirement. The exceptional ability option is best reserved for applicants who don’t have an advanced degree, or who are in fields where their record of achievements is the stronger story to tell.

The NIW allows you to self-petition for a green card without needing an employer sponsor or a labor certification (PERM). This gives you more control over your immigration future and flexibility in your career. An NIW approval also secures you a priority date, which is your place in line for a green card.

No. Filing or even getting an NIW approved does not by itself grant you legal status. It is only the first of two steps. The second step is to either file your I-485 (if you are inside the U.S.) or go through consular processing (if you are outside the U.S.), to get your green card. Several years may pass between getting the NIW approved and actually becoming a permanent resident. The number of years may depend on your country of birth. If you want to live and work in the U.S. after NIW approval, you must already be in a valid status (such as H-1B, F-1, O-1, etc.). If you are abroad, you can stay abroad and then apply for your green card once your priority date is current.

No. You only receive an EAD if you are able to file for Adjustment of Status (Form I-485), which can only happen if your priority date is current. If your country of birth is oversubscribed, you may have to wait years before you can file for adjustment and receive an EAD.

If you file the new H-1B petition within your 60 day grace period, it should be treated like a "transfer", and it should not be subject to the $100k fee. There is still some ambiguity, so there are no guarantees that this is what USCIS will do, but we recommend proceeding with the filing as a "transfer" case.

If you are past your 60 day grace period and are filing a Change of Status petition, then it is not subject to the $100k fee as long as the change of status request is granted.

However, if you are past your 60 day grace period, DO NOT have a valid H-1B visa stamp, and are filing as a consular matter (or if USCIS rejects the change of status request and treats it like a consular matter), your petition is subject to the fee. This is important because many corporate immigration departments were requiring you to file consular in the past. It is more important than ever to convince them to file the change of status request instead.

If you are past your 60 day grace period and DO have a valid H-1B visa stamp, there is still no clarity on whether or not the fee will apply if your employer files a consular case. Our reading of the USCIS guidance would indicate that you are not subject to the fee. However, this remains to be seen. We recommend filing as Change of Status to be on the safe side (unless you are already abroad, in which case you can try to get your employer to file, noting that you have the valid visa stamp).

A "Notice to Appear" is the document that the government first files in court when it is starting deportation proceedings against you. H-1B visa holders were typically not enforcement priorities for USCIS, because they could easily find new sponsors if they were laid off. In a stunning change of policy, USCIS is now issuing NTAs to H-1B holders who were laid off even if they might have good options to maintain status. USCIS appears to be issuing the NTAs the day after the agency receives the employer's notice that the employee is no longer working for the company.

This is shocking, because USCIS has consistently recognized that H-1B visa holders have a 60 day grace period post layoff and options to change their status or leave the U.S. within this 60 day period. The NTAs make it seem like USCIS is no longer acknowledging the grace period. However, the agency has not made any formal policy announcements and has been secretive about this process.

You can find a sample NTA here: https://portal.ice.gov/pdf/I-862NTA(English)version6.2022.pdf

There is no clear answer to this question! Read carefully.

Grace periods are discretionary, which means that USCIS makes the determination case by case. It also means different officers can make different decisions.

USCIS states that the grace period is “typically determined based on the last day for which a salary or wage is paid”.

The safest, most conservative answer is that your 60 days starts the day after your last day of work. So if you were laid off on March 12th, the grace period starts on March 13th and ends on May 12, 2025.

Many companies will continue paying your regular payroll in regular increments after your last day of work. USCIS has traditionally considered nonproductive time as valid H-1B time, as long as the company paid the required salary. So if your last day of work is March 12th, and the company agrees to pay your “severance” as regular payroll increments through the end of May, and you receive normal paychecks with a last paid date of May 31, 2025, then you can assert that your grace period starts on June 1, 2025 and ends on July 31, 2025.

If you receive paychecks marked as “severance” pay and not marked as regular hourly rates, we do not advise using those paychecks to start the grace period later, because it is not clear that it covers days for which a salary or wage is paid if it is purely severance pay. We have seen people successfully make the argument that such pay should force the grace period to start later, but we believe it is risky. USCIS has the final say here.

Please note that we anticipate new guidance from USCIS at some point, so this will be an evolving situation.

The grace period also expires if your I-94 expires. If you are laid off on June 1st and your I-94 is expiring on June 15th, you only get 15 days of grace period and not the full 60.

Please remember that your latest I-94 could either be the one on CBP’s website, or it could be a paper I-94 on your latest I-797 approval notice from USCIS. Whichever document was issued latest is usually the one that applies. Talk to an attorney if you have any doubts about which date is correct.

Unfortunately, you cannot claim a grace period. If the extension remains pending, you might have some options to negotiate with your current employer to arrange severance payments in a way that arguably keeps you in status for a temporary period. If you do not receive any severance and regular salary payments end, you do not have a good claim to be in status.

The I-539 application needs to be received by USCIS by the time your grace period ends. If your grace period ends on July 31, 2025 then it is best that it arrives by this date. USCIS can still process it if it is received on August 1, 2025, but it is much safer to file it the day before.

You can request 6 months, or 180 days. USCIS has not specified which is which, and we have seen success with both even if 6 months is slightly more than 180 days. We typically request the shorter time of the two calculations to provide certainty for planning purposes.

Generally, you would want to include your current passport biographical page, most recent I-94 record, H-1B visa stamp, H-1B approval notice(s), prior immigration documents from any prior status held (ex. F-1 documents such as EAD cards, I-20s), and three most recent pay statements. A written statement is also required and must address the reason why you are requesting the B-2, why the extended stay will be temporary, how you plan to financially support yourself, and should include a request for USCIS to favorably apply the discretionary grace period.

We also recommend including a copy of your bank statement, and a return plane ticket for roughly 6 months in the future to indicate a good faith plan to leave the U.S. if you are unsuccessful in your job pursuit.

If your B-2 change of status is still pending and a new employer wants to file an H-1B petition for you, they can still do so. It is important to understand that an H-1B petition can be filed in one of two ways: as a change of status or through consular processing.

With a change of status, once the petition is approved, your status automatically switches back to H-1B on the effective date, and you can begin working for the new employer without leaving the U.S.

With consular processing, you would need to leave the U.S., attend a visa interview abroad, and obtain an H-1B visa stamp (in some cases, you may be able to reuse a previously issued valid H-1B visa). You would then return to the U.S. in H-1B status by presenting your new H-1B approval notice and visa stamp.

Your new employer can choose to file the H-1B petition as a change of status, even if the B-2 application is still pending. However, if you are outside of the grace period, USCIS generally requires that the B-2 application be approved before approving a subsequent change of status back to H-1B.

In practice, USCIS has often adjudicated the pending B-2 application and the H-1B petition together when filed under premium processing. This approach typically avoids delays caused by the pending B-2 application. However, it is important to note that USCIS is not obligated to follow this practice in every case, so there is always a risk of delay while waiting for the B-2 to be adjudicated.

Ultimately, it will be up to your new employer and their immigration counsel to decide whether to pursue a change of status or consular processing, as the H-1B petition is an employer-driven filing. But you can always feel free to make your preference known to the new employer, especially if you have concerns about international travel.

Remember, if the H-1B petition is filed during the grace period, it is treated like an H-1B transfer (as if you never left H-1B status) even if the B-2 application is pending. It is only after the grace period has expired that you need to do the change of status back to H-1B.

In this scenario, your new employer just has to ensure that they file an H-1B change of status for you before your B-2 status expires. There should be no risks of any delay in the change of status process since the B-2 has now been approved. Remember, you won’t be able to work for that new employer until the new H-1B petition has been approved and your status has effectively changed back to H-1B.

The short answer is yes, as long as USCIS exercises discretion to grant you an extension. However, this is almost never recommended. We recommend that you consult an attorney about your individual situation before making any decisions to request an extension. Extending B-2 status can get very, very messy.

In general, most people who apply for B-2 should plan to either get a new H-1B sponsor in the next 6 months or plan to leave the United States near the end of this period.

Extensions usually need additional justification like a medical emergency or severe family hardship to be considered without hurting your overall record.

Unfortunately, in this case, there is no grace period that can be applied. The grace period only applies once per authorized time period in H-1B status, basically once per H-1B approval. It is really important to speak with an attorney to discuss next steps. Depending on your situation, this may involve needing to depart the U.S. or you may still be in B-2 status and have some time to find another employer. It really depends on your specific circumstances.

In this case, a new grace period should apply because you have a new H-1B approval. So you should have another up to 60 day grace period to either have a new employer file an H-1B petition or file a change of status to another eligible nonimmigrant category. Again, these can be tricky situations so it is always good to consult an attorney.

Unfortunately, no. Unless your former employer continues to pursue the PERM and I-140 process with a true intent to employ you in the offered permanent role when you become a lawful permanent resident. This would require that your termination was temporary and the employer fully intends to rehire you in the near future. These situations are extremely rare and subject to a lot of scrutiny. So you want to proceed with caution. In the vast majority of cases, the PERM and I-140 process will cease immediately upon the layoff and there is no way to keep it going.

Likely no. This entirely depends on how your former employer proceeds. If the I-140 is still pending, the employer can choose to either withdraw it or let it continue to be adjudicated. Unlike the legal requirement to withdraw the underlying H-1B after a layoff, there is no similar obligation for the employer to withdraw a pending or approved I-140. If they decide to keep it going and an RFE is issued, they may withdraw it at that point or they may choose to withdraw it immediately after the layoff.

The priority date is only secured if the I-140 is ultimately approved. If the employer allows the I-140 to be approved, whether you can use it to extend your H-1B beyond the six-year limit depends on whether they withdraw it within 180 days of approval. If the employer withdraws the I-140 within 180 days, it is subject to automatic revocation. In that case, you can keep the priority date, but you cannot use the I-140 for post-sixth-year H-1B extensions.

If it is withdrawn after 180 days then you can retain both the priority date and continue using the I-140 for H-1B extensions beyond the six-year limit (unless it is withdrawn or revoked for other reasons such as fraud or misrepresentation). However, this does require cooperation from the employer and unfortunately, the most common scenario when the I-140 is pending during a layoff is that the employer simply withdraws the petition and lets the process end. However, it is worth having a conversation with your former employer about how they intend to proceed.

This really depends on how your former employer decides to move forward. Unlike the H-1B, where employers have a legal obligation to withdraw the petition to avoid ongoing wage liability, there is no similar legal requirement to withdraw an approved I-140. The employer may choose not to withdraw the I-140 at all or they might wait until after 180 days have passed since approval before doing so. If the employer withdraws the I-140 before the 180-day mark, it is automatically revoked. While you can still retain the priority date, you would not be able to use that I-140 to extend your H-1B beyond the six-year limit. So, if the employer withdraws early, there are real consequences. For this reason, it’s often something that can be negotiated, sometimes the employer may agree not to withdraw before 180 days. It can be a gesture of goodwill that should really carry little to no risk to the company, especially if you are re-hirable in the future.

Your H-4 dependents still hold H-4 status as long as they have a valid H-4 I-94. They must hold the I-94. They cannot claim valid H-4 status after your grace period expires, even if they have time left on the I-94, but they are covered during your entire grace period.

Yes, USCIS has confirmed that the H-4 EAD remains valid work authorization during the grace period. However, it should not be used once the grace period ends.

Yes, and in most cases it is good for the whole family to change status together. There may be unique considerations if any of the dependents are eligible for another status (example - spouse eligible for their own H-1B or O-1, or child eligible for F-1 to study at university).

You *can* travel but if you do, you will not be permitted to re-enter the U.S. Only travel if you intend to give up the pending application and spend significant time abroad. You can complete your job search and find a new job abroad, but you wouldn’t be able to re-enter for in person interviews or to move your personal belongings. Once you leave, you are gone until you get a new H-1B sponsor.

Same as above. If you leave while the new H-1B is pending, you will not be able to re-enter the U.S. until the H-1B is approved. It would then be approved as a “consular” petition. If you have a valid visa stamp, you could use the consular approval to re-enter the U.S. and resume H-1B status at that time. If you do not have a valid visa stamp, you would need to take that consular approval and obtain a new visa stamp before entering the U.S.

Realistically, traveling when the B-2 is approved is the same as traveling when the B-2 is pending in that it will mean you cannot re-enter the U.S. until you get a new H-1B sponsor.

This is because having the B-2 approval does not guarantee that the consulate will issue you a B1/B2 visa stamp in your passport. They are actually unlikely to issue this stamp if you have been in the U.S. for any significant period of time. Once you leave, you are not likely to be able to return unless you return on H-1B status.

If you happen to have a valid B1/B2 visa stamp in your passport, then you might be admitted as a B-2 visitor if you want to re-enter, but this likely has risks, and you should talk this through with an attorney before making this decision.

Unfortunately not. H-1B lottery registrations are not transferable. You should ask your company if you are re-hirable, and as long as you are re-hirable and they would be willing to consider you for re-hire in October, they are allowed to proceed with the H-1B petition for you even if you are no longer working there. We recommend asking and negotiating what you can.

Keep in mind that employees cannot pay any of the attorney or filing fees associated with the H-1B petition (except for premium processing). This means that helping you out will cost the company, and you can’t do anything about it. You should still ask though.

Maybe. USCIS has historically permitted the transfer of most H-1B petitions to new employers during the summer months before H-1Bs are set to start in October. However, there are random denials reported every year as well, so it’s uncertain.

You are on better footing if the H-1B is approved. If your employer has not filed with premium processing, you should most likely request to pay for premium yourself to get that approval ASAP.

Unfortunately if the pending petition receives an RFE and the company decides not to respond, you may end up losing your ability to transfer the H-1B petition.

If the first H-1B is still pending at the time USCIS is making the decision on the second one, the agency’s decision is even more uncertain. You can try and you can make an argument, but don’t count on anything.

Our most important advice to everyone here is: do whatever you can. Don’t give up on the coveted lottery slot! USCIS often approves these, so even if the situation is uncertain, and even if the law would allow a decision either way, you should at least try. Hopefully your new employer will try for you.

Our client contacted us for assistance knowing that a job search at his senior level in his particular field would take several months at least, far exceeding the grace period. He applied for a B-2 change of status with his spouse. Some medical issues arose during the intended job search period which put the timeline far behind, and our client would not have been able to find a new job within 6 months. We filed a B-2 extension for the couple based on our client’s medical issues. The extension was approved, and our client was granted ample time to recover. He found a new job and moved back to H-1B shortly after. He started at the new job once the H-1B was approved. The petition was adjudicated quickly and smoothly. He was able to get new H-1B visa stamping a few months after getting the new H-1B approval and travel back home for an important family event with peace of mind. He is settled into his new job now. His H-1B maxout period is approaching within the next two years, and he unfortunately does not yet have a solution to obtain an I-140 approval and extend it past the H-1B maximum. He will continue to face challenges in this area but is steadily employed and working towards a solution.

Our client was laid off from a major U.S. company and did not know she was pregnant at the time. She filed the first B-2 change of status application intending to find a new job. She was unable to find a new job during the first few months, and then gradually gave up hope for this as she neared the end of her 6-month period on B-2 status. When giving up the job search, she was 8 months pregnant and unable to safely travel on an airplane. We filed the B-2 extension for her based on her medical condition. She gave birth and then resumed her job search a few months later. She ultimately left the United States without finding a new job, but she remains eligible to resume H-1B status in the future if she wants to continue her job search from abroad.

Waypoint Immigration provides expert guidance and support across a wide range of immigration services. Here’s a breakdown of our services and associated pricing:

Consultations ($198 for 25-minute discussion)

Complex Immigration Consultations (55 minutes, $396)

Case Reviews ($350 for full petition review and markup, a 25-minute discussion)

- Includes full petition review, 25-minute discussion with your attorney, and follow-up resources ($350 for H-1Bs, PERMs, visa stamping, adjustment of status)

- We do not include NIWs, EB-1As, O-1s, or RFEs in this service category. Please book a Consultation to review strategy for those case types instead.

Case Preparation (rates depending on the complexity of the case and include attorney fee, basic government filing fees, and admin fees/costs)

Sample case preparation rates:

- EB-2 NIW: $9,605

- EB-1A: $12,605

- I-130/AOS Marriage Case with EAD/AP Combo Card: $6,095

- I-539 Change of Status Case: $2,060

- RFE: $1,500 - $6,000 depending on complexity

At Waypoint Immigration, we provide dedicated legal services with the aim of achieving the best possible outcome for our clients. However, due to the nature of immigration law practice at USCIS and the many variables involved in each case, we do not offer refunds for services rendered if your case is denied. Our attorneys work diligently on your behalf, but the final decision rests with U.S. Citizenship and Immigration Services (USCIS) or other relevant authorities. We recommend discussing any concerns or questions about the process with your attorney during consultations to better understand your case's unique circumstances. We will help you understand your chances as accurately as possible so that you can make informed decisions that balance your risk of approval against the risk of denial.