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.

The best academic letters come from professors or researchers you worked with on a project, research, or publication. They should describe your role, highlight specific results, and explain how your work impacted the field. Academic recommenders may also note other ways you stood out, awards, unique skills, or academic achievements that distinguish you from peers.

An independent letter comes from someone who has not supervised, taught, or employed you. Ideally, it is from a senior professional with a recognized title in your field. Independent letters are powerful because they confirm your reputation and national impact outside of your direct workplace or school.

An independent recommender should provide a broad, credible view of your professional standing and explain why your work matters on a national scale. Because this person has not supervised or taught you, their letter carries weight as an objective endorsement. The letter should begin by briefly describing the recommender’s own credentials and experience to establish authority. From there, it should outline your overall qualifications and explain the key challenges facing your field, showing that the recommender understands both the landscape and your place within it.

The strongest letters explain how your work addresses those challenges and why it is significant for the United States, not just your employer. They often highlight your prospective national impact. For example, how your skills or innovations could improve an industry, strengthen U.S. competitiveness, or advance public welfare. Independent recommenders may also point to evidence that is visible beyond your workplace, such as publications, patents, or speaking engagements, to demonstrate that your contributions are already recognized publicly. Finally, the recommender should make clear why you stand out among others in your field, emphasizing what makes your expertise unique and why your continued work in the U.S. is valuable.

We usually recommend 3–4 strong letters. More letters are not necessarily better; USCIS values quality and detail over quantity. Some cases are successful with fewer letters as well. Each letter should contribute a unique perspective on your work.

Ideally, yes. A letter on official company or institutional letterhead with contact information looks most professional and credible. If a recommender cannot sign on letterhead (for example, due to company policies), they may write in a personal capacity, this is acceptable but generally less impactful.

Typically, no. USCIS gives little weight to classroom-only references. Academic letters should come from professors or researchers who worked with you directly on research, publications, or projects and can speak to your specific contributions and potential for future impact.

Both. USCIS officers want to see that you have a proven record of achievement and are well positioned to advance your field in the future. Strong letters connect the two: “Based on what this person has already done, here is why they will continue to make nationally important contributions in the U.S.”

Not necessarily. Letters can come from both U.S. and international experts. But having at least some U.S.-based recommenders strengthens your case, because it shows your work is recognized and valued within the U.S. system.

The NIW allows you to self-petition for a green card without an employer sponsor. If your H-1B six-year limit is approaching, filing an NIW ensures you have a pathway to permanent residency that is independent of your employer. While it does not extend your H-1B directly, it can provide peace of mind and flexibility by securing a priority date and keeping your green card process moving forward even if your H-1B expires.

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.

Our philosophy is to craft your petition as a clear, common-sense narrative that any officer can easily understand. We explain your work, your plan for the future, and how you meet the requirements in a way that is logical, compelling, and backed by evidence.

It’s much more than that. We consider NIW case building to be an art form. It’s about weaving together your accomplishments, your future plans, and the legal criteria into a story that makes your impact obvious, not just to an expert in your field, but to an immigration officer who may know little about your industry.

We only represent individuals, not companies. Corporate lawyers are paid to protect the company’s interests, which don’t always align with yours. Our mission is to put you, the applicant, first, building a case that serves your career and immigration goals, not your employer’s.

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.

If you can show that your work has already benefitted the United States, through measurable outcomes, recognition, or adoption by others, that tips the scale in your favor. It proves that giving you the freedom to continue your endeavor serves U.S. interests now and in the future.

The balancing test allows you to argue timing and urgency. For example, if your work supports critical technology, national security, healthcare innovation, or climate goals, delaying your contributions could mean the U.S. loses ground to competitors or fails to address pressing challenges.

Unlike the PERM process, which assumes a one-for-one substitution in the job market, NIW cases emphasize that your work creates added value. We explain how your contributions either complement U.S. workers, create new opportunities, or advance fields in ways that benefit the workforce rather than displace it.

Often, RFEs contain template language that questions whether the waiver of a labor certification is justified. This is why it’s critical to go beyond boilerplate in your petition and present a thoughtful, evidence-based argument that tips the scales in your favor.

Evidence may include:

• Documentation of past U.S. impact (press releases, adoption of your work, measurable results).

• Letters from independent experts explaining why your contributions cannot be replicated by others.

• Proof that your work addresses urgent U.S. priorities.

• Evidence showing your field requires unique expertise that the labor certification process cannot capture.

Because it’s the final weighing point. Even if you have merit (Prong 1) and strong credentials (Prong 2), USCIS can still deny your case unless you show that, on balance, the U.S. is better off letting you bypass the traditional system. It’s where we pull all the threads together, your uniqueness, your past impact, and your future contributions, to show why the waiver makes sense.

We craft this section as a common-sense argument for why it benefits America to let you move forward. We show that:

• The labor certification process cannot capture your unique role.

• You have already proven you can deliver benefits to the U.S.

• Your future work is urgent and nationally significant.

• U.S. workers are not harmed, they are helped.

When presented clearly and persuasively, this tips the balance toward approval.

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.

Every significant achievement from your past, whether it’s a project, publication, patent, or speaking role, is tied to your future goals. By showing how you solved problems or innovated in the past, we demonstrate you are equipped to advance your endeavor in the U.S.

The best evidence includes reference letters, publications, patents, media coverage, awards, and records of measurable outcomes from your projects. These materials prove your skills aren’t theoretical, they’ve already been tested and recognized.

We focus on your unique combination of skills, experiences, and results. Even if others work in your field, your petition must explain why you in particular are equipped to make progress, whether that’s specialized expertise, a history of innovation, or leadership that others don’t have.

We present your background in a common-sense, logical flow: starting with your education, then your work experience, then your major contributions. Each part is explained in plain language, supported by exhibits, so the officer can follow your story step by step without confusion.

Reference letters are used to pinpoint and validate your accomplishments. Each claim in your petition is backed by a letter or exhibit. For example, if a press release shows a project outcome, a manager’s letter confirms your role. This triangulation makes your record hard to dispute.

Contributions outside of work, like peer review, speaking engagements, professional memberships, or mentoring, are highlighted to show your independent recognition and influence. We provide context about the prestige or selectivity of these activities so the officer understands why they matter.

“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.

USCIS wants to see that your contributions extend to the field, industry, or U.S. society at large. For example, if you develop a new process at your company, explain how it can be adopted by other companies, influence industry standards, or benefit the public. Pair public-facing documents (like press releases, patents, publications) with a reference letter tying you to those outcomes.

National importance can be demonstrated by showing how your work creates benefits such as:

• Economic (growth, cost savings, competitiveness)

• Safety (infrastructure, national defense, cybersecurity)

• Health (medical research, therapies, clinical practices)

• Cultural/Educational (advancing knowledge, training workforce)

• Innovation/Technology (new systems, patents, industry standards)

• Global leadership (keeping the U.S. at the forefront internationally).

Connect your work to official agendas or policy priorities. For example:

• Clean Energy / Climate: Net-zero emission goals.

• Technology / Security: AI, semiconductors, quantum computing, 5G, cybersecurity.

• Healthcare: Tackling pandemics, advancing biotech.

• Infrastructure / Workforce: Resilient supply chains, job creation, advanced manufacturing.
  

Citing government strategies, White House technology priorities, or National Science and Technology Council lists strengthens your case.

Evidence may include publications, patents, adoption of your methods by others, citations, industry conference invitations, or recognition by independent experts. Independent reference letters are especially powerful in demonstrating that your work influences the field beyond your employer.

Strong evidence includes:

• U.S. government funding or policy documents citing your area.

• Press coverage or reports showing the importance of your field.

• Letters from experts explaining how your work addresses national challenges.

• Proof that your contributions create economic or societal impact, not just corporate benefit.

Not necessarily, but it helps. If your work supports U.S. leadership in a globally competitive field, like AI, clean energy, or biotech, that strongly supports national importance. Even if you’re focused regionally, you can argue national importance if your project’s methods or outcomes scale to national challenges.

The key is to link your specific projects to national-level goals. For example, if you worked on a healthcare analytics tool, frame it as supporting U.S. healthcare cost reduction or pandemic readiness. If you’re in semiconductor packaging, emphasize how it strengthens U.S. supply chain security and tech leadership. Each client’s evidence, like press releases, patents, conference talks, or project results, can be tied to why this matters to the U.S. as a whole.

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.

Programs, flyers, invitations, screenshots of conference agendas, or official letters confirming your participation all help. If the event had selective criteria (peer-reviewed abstract, invitation-only, keynote, etc.), include documentation proving that the speaking role required recognition or expertise. Photos, recordings, or media coverage can further establish your visibility.

Provide copies of the publication itself, along with evidence of its reach or influence. This may include citation records (Google Scholar, ResearchGate), impact factor data for the journal, or evidence that the work was referenced by others in your field. If the publication appeared in a respected venue, documentation of the journal’s standing or selectivity can show prestige.

Peer review invitations, confirmation emails from journals or conferences, reviewer certificates, and screenshots of online reviewer dashboards are good evidence. If possible, include proof that the journal or conference is reputable and selective, showing that only trusted experts are asked to review.

Gather evidence about the selection criteria. For example, conference acceptance rates, eligibility requirements for awards, membership criteria for societies, or nomination-only documentation. Screenshots from official websites, bylaws, or announcements that highlight competitiveness can demonstrate that your achievement was not routine but required exceptional merit.

Provide membership certificates, welcome letters, or receipts. More importantly, show the qualifications required to join. If it is an organization where membership is restricted to recognized professionals, document those requirements (e.g., bylaws, website eligibility criteria). USCIS places little weight on memberships that anyone can purchase, so proving selectivity is key.

Yes. Articles, press releases, or interviews in reputable outlets can demonstrate that your work has visibility beyond your employer. It’s especially helpful if the media mentions your name, your role in a project, or the broader impact of the work.

If you cannot share documents due to NDAs or company policy, you can use redacted versions or provide letters from supervisors confirming the content. You can also rely on publicly available descriptions of the project (such as patents or press releases) and then connect your role through a supporting letter. USCIS does not expect applicants to violate confidentiality agreements, but you still need to provide sufficient objective proof.

Both are acceptable. U.S.-based documents can strengthen your case by showing your work already has impact in the United States. However, international documents are equally valuable if they establish your professional achievements, recognition, and influence in your field.

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.

No. While your endeavor can build on your current role, it must be framed as a forward-looking plan that has impact beyond your employer and is mission-focused. For example, instead of saying “I will keep doing my job at Company X,” you should describe how your expertise will drive advances in your field, support U.S. priorities, or create benefits that extend outside your company.

It should be specific enough to show that you have a credible, realistic plan, but also broad enough to demonstrate national-level impact. USCIS officers are not subject-matter experts, so you should explain your methods, short-term goals, and long-term vision in plain terms. Think of it as answering: What will you do? How will you do it? And why does it matter to the United States? At the same time, your endeavor cannot be so broad or generic that “anyone could do it.” For example, saying “I want to contribute to U.S. healthcare” or “I plan to support technology growth” is too vague. USCIS wants to see how you, with your unique expertise, are positioned to make a measurable difference.

Strong proposed endeavors are in areas that align with U.S. national priorities. For example, science, technology, engineering, mathematics (STEM), healthcare, clean energy, infrastructure, national security, cultural enrichment, or workforce development. That said, any field can qualify if you show that your work will have substantial merit and national importance, meaning it benefits more than just one employer and has potential impact at an industry, community, or national level.

Yes. Entrepreneurs can qualify for NIW if they show that their venture has national impact, not just local benefit. USCIS looks for concrete evidence such as a business plan, investment, job creation potential, intellectual property, or support from industry or government partners. Simply stating that a company will “help the economy” or “create jobs” is not enough, you need to demonstrate how your enterprise contributes to U.S. competitiveness or addresses a broader national need.

No. USCIS does not require guarantees of success. Instead, you must show that you are well-positioned to advance your proposed endeavor through your education, skills, track record, and support from others in your field. The law recognizes that many innovations and business ventures involve risk, so what matters is demonstrating a credible plan and the capability to carry it forward, not proving certain success.

You need to show that your work has broader implications for the United States, not just local or company-level benefits. An endeavor may be considered nationally important if it:

• Advances a critical industry (like clean energy, semiconductors, or healthcare);

• Strengthens U.S. economic competitiveness or national security;

• Improves public health, education, or infrastructure; or Introduces methods, technologies, or standards that others in the field can adopt.
  

It’s not about geography, even work based in one state or region can be nationally important if the field-wide or systemic impact is clear.

Because the NIW is about your future benefit to the United States. Your past work helps prove you have the skills and credibility to deliver, but USCIS officers want to see how you plan to contribute in the years ahead. A strong endeavor explains both your short-term goals (steps you’ll take in the next few years) and your long-term vision (how your work will scale to address national challenges or shape your field over time).

Frame your contributions in terms of how they reach outside your company. Instead of focusing only on internal success, emphasize:

• Methods, frameworks, or innovations that others in your industry are using;

• Publications, patents, or open-source contributions that advance your field;

• Influence on industry standards, best practices, or workforce development;

• Collaborations with universities, government, or non-profits;

• Broader recognition of your work.
  

The key is to demonstrate that your expertise is transferable and influential across the U.S. ecosystem, not just valuable to your current employer.

Yes, but in plain, non-technical language. USCIS officers are not specialists in your field, so you don’t need to provide deep technical detail. Instead, explain enough about your approach so they understand you have a credible plan and the skills to carry it out. For example, describe the tools, strategies, or processes you’ll use and how they help you reach your goals.

Definitely. A strong endeavor explains both:

• Short-term goals (what you’ll achieve in the next few years, like completing research, publishing results, or piloting a program).

• Long-term goals (how your work will scale or influence your field, industry, or national priorities over time).
  

This shows that your work is future-focused and not just about what you’re already doing today.

Connect your internal or technical work to bigger national trends or needs. For example, if you optimize a process inside your company, explain how that process improves U.S. competitiveness, lowers costs for consumers, strengthens supply chains, or supports national initiatives (like clean energy or healthcare). USCIS wants to see how your contributions can extend beyond your employer and influence a field or system. Remember, you also need to be able to prove these things through reference letters and objective evidence.

That can be very strong. If your methods, models, or frameworks are adopted by others in your industry, cited in publications, or applied to solve problems more broadly, it shows that your work has scalable impact. USCIS values contributions that improve practices across a field, not just inside one company.

No. Your endeavor can build directly on your current role, but you need to frame it as a forward-looking plan with wider impact. Saying “I will keep doing my current job” is not enough. Instead, describe how your ongoing expertise will drive advances in your field, support U.S. priorities, or influence practices beyond your employer.

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.

In the traditional PERM labor certification process (and often for H-1B visas), the employer has to show that the job itself normally requires a bachelor’s or higher degree. USCIS and the Department of Labor focus on the position and whether it meets the educational baseline for that occupation.

With the NIW, the analysis is different. USCIS looks primarily at you, the applicant, not just the position.

If you are applying under the advanced degree route, you must be in a “profession”, an occupation that normally requires at least a U.S. bachelor’s degree or higher to enter. (Examples: engineering, medicine, computer science.) This is similar to how PERM/H-1B define professional roles.

If you are applying under the exceptional ability route, you don’t need to prove the occupation normally requires a degree. Instead, you must prove that you personally have a level of expertise far above what’s ordinarily encountered in your field, even if that field is not degree-driven.

So while PERM ties eligibility to the job requirements, the NIW allows you to qualify based on your own qualifications and national impact, either through an advanced degree in a profession, or through exceptional ability proven by your track record.

Yes, if you also have at least five years of progressive, full time, post-baccalaureate experience in the specialty. USCIS considers a bachelor’s degree plus five years of progressive experience as the equivalent of a master’s degree, which satisfies the EB-2 “advanced degree” requirement. You must include formal Employment Verification Letters for your 5 years of experience, with exact dates of employment.

Yes. You may qualify under the exceptional ability route. This path is for people who can demonstrate expertise significantly above that ordinarily encountered in their field, even if they don’t hold a master’s or Ph.D. To qualify, you must meet at least three of the six regulatory criteria (such as formal education or certification, ten years of experience, high salary, recognition by peers, or professional memberships), and USCIS will make a final merits determination to decide if your ability rises to the exceptional level.

No. Meeting the EB-2 baseline (through advanced degree or exceptional ability) is only the first step. You must also satisfy the three Dhanasar prongs to receive the National Interest Waiver:

1. Your proposed endeavor has substantial merit and national importance.

1. You are well-positioned to advance that endeavor.

1. On balance, it would benefit the United States to waive the job offer and labor certification requirements

Only if you meet both parts, EB-2 eligibility and the national interest test, can USCIS approve your NIW.

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.

The NIW allows you to self-petition for a green card without an employer sponsor. If your H-1B six-year limit is approaching, filing an NIW ensures you have a pathway to permanent residency that is independent of your employer. While it does not extend your H-1B directly, it can provide peace of mind and flexibility by securing a priority date and keeping your green card process moving forward even if your H-1B expires.

PERM labor certification can be slow and uncertain, often taking well over a year. The NIW bypasses PERM entirely, giving you the ability to move forward on your own. This is especially useful if your employer is not prioritizing your case, is facing layoffs, or you simply want more control. Many applicants pursue NIW alongside PERM as a parallel strategy, this way, even if PERM is delayed or denied, your NIW keeps your green card process on track.

Yes. Under the American Competitiveness in the Twenty-First Century Act (AC21), if your I-140 is filed before the end of your 5th year of H-1B status and remains pending when you approach the 6-year maximum, you may qualify for 1-year extensions of your H-1B until the petition is adjudicated. This provision helps prevent you from falling out of status while waiting on a decision. If your I-140 is approved and your priority date is not yet current, you may also qualify for 3-year H-1B extensions, providing additional security while awaiting your green card.

Only if your priority date is current under the Visa Bulletin. At present, Rest of World (ROW) countries are backlogged by about 3–5 years, so concurrent filing is usually not an option. For applicants born in India or China, the wait times are even longer, making concurrent filing impossible. In practice, most applicants will first file the NIW (Form I-140) to secure a priority date, and then wait until that date becomes current before filing adjustment of status (Form I-485). If you have an older priority date and are current, then you can leverage that older date and do a concurrent NIW and I-485 filing.

The NIW can serve both roles, depending on your situation. For many professionals, it acts as a backup to employer-sponsored PERM or EB-1 petitions, giving you security if delays or denials occur. For others, especially those with strong qualifications and work of national importance, the NIW is a strong primary pathway because it provides independence from employer sponsorship. Even if you pursue other green card options, filing an NIW in parallel ensures you have a secure, self-driven strategy in place.

Once your I-140 is approved, you must wait until your priority date is current to apply for a green card. Right now, applicants from most countries (“Rest of World”) typically wait 3–5 years. For China, the wait is significantly longer, potentially 9-10 years. For India, the backlog is much more severe and can stretch beyond a decade (some estimates say 200+ years!), depending on visa bulletin movement. If you are from China or India, the EB-2 NIW is often still worth pursuing but as a stepping stone and not the ultimate end to the journey.

Even with the long waits, filing an NIW now is strategic because it locks in a priority date. Many applicants later port that priority date to a future EB-1A petition (extraordinary ability), which often moves faster. This strategy is especially common for Indian applicants navigating long EB-2/NIW backlogs. The NIW can also help you separate your green card process from your employer, which provides flexibility and peace of mind.

Yes. If you already have an approved I-140 (through PERM or another EB category), you can almost always retain that earlier priority date when filing your NIW. This is an important tool for reducing wait times if you qualify for multiple categories.

No. The NIW is not a “quick fix” for visa status issues. Filing an NIW does not extend your visa, give you work authorization, or allow you to remain in the U.S. if you fall out of status. It is best viewed as a long-term immigration strategy for securing permanent residency.

Professionals who want more independence from employers, who are in fields with clear national impact, and who may want to secure a priority date now for long-term planning. It is particularly valuable for Indian and Chinese applicants who face long backlogs and want to position themselves for a future EB-1A or other faster pathway.

Because it provides a way to secure your place in line now, even if you cannot file adjustment of status immediately. While it does not solve short-term visa problems, it can protect your future by ensuring you already have an approved I-140 and a priority date to build on, giving you flexibility for future filings and career moves.

Yes, NIW petitions are not tied to one employer, but the new role should stay aligned with your proposed endeavor. As long as you stay compliant with your underlying status, it is fine for the NIW perspective.

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

Hire an experienced immigration lawyer who practices with EOIR. Most will advertise themselves as "removal defense" attorneys. You can talk to us at Waypoint for immediate next steps and for referrals. We don't practice removal defense, but we can help you get the resources you need.

You should file sooner rather than later. We were previously advising to file around the 45 day mark of your 60 day grace period, but this guidance is now being revised.

If you already have a new job offer and the new employer ready to file the I-129 for your during the grace period, and if you know your prior employer is not notifying USCIS of the layoff right away, then you can hold off on filing the I-539.

Yes, there have not been any updates or changes yet. USCIS routinely recognizes the 60 day grace period and is approving the I-539s. However, you will need to check the most up to date information. This website and FAQ are only updated periodically and might not have the most up to date information.

In part, but without guarantees of resolving your situation.

The 60 day grace period is discretionary, so USCIS has the ultimate say on whether or not it applies to you. This means that you cannot be certain of I-539 approval.

If the I-539 was properly filed, then you will not accrue unlawful presence during the days it was pending with USCIS. However, a denial may factor into your immigration record for the purpose of future visas.

The pending I-539 might not prevent USCIS from issuing an NTA. This is a new situation, and additional guidance is expected from the government in the coming months.

If you need to stay in the United States and have a valid basis to file an I-539, then it is still an option you should explore. It offers some limited protections. You can still file these applications, but proceed with caution.

You can avoid an NTA if your employer does not notify USCIS of your layoff right away. Please see the next FAQ for more information about this.

You can also avoid an NTA by changing status or leaving the United States before an NTA is issued. Please read further on this FAQ.

You can check to see if you were issued an NTA by putting your A-number into this website: https://acis.eoir.justice.gov/en/

Always make sure that you have updated your most recent address with USCIS by filling out a change of address form on your USCIS account. If you do not have an account, you should make one.

You can avoid an NTA if your employer does not notify USCIS of your layoff right away. Check with your employer to make sure you understand when they plan to notify USCIS.

You can also avoid an NTA by changing status or leaving the United States when you are within your grace period, before an NTA is issued.

Your employer may have options to structure your severance to keep you on payroll but in non-productive status, paying out your severance as payroll. This is allowed, and you should talk to the employer about doing this.

You can also ask your employer to hold off on notifying USCIS of the layoff until the end of the 60 day grace period. Your employer may or may not be comfortable with this, depending on your relationship and level of trust. It does open the employer up to some liability on their side for a wage claim if you sue them. However, such notifications are typically low priority for companies. Some companies routinely wait months to send in the notifications, and some forget to send them at all. Sending the notification to USCIS terminates the company's wage liabilities, but there is no required timeline under the law for the company to send such a notice.

If your employer is not communicating with you, or if your employer is notifying UCIS right away, you should make plans to immediately leave the U.S. or immediately file an I-539 change of status application. Talk to a Waypoint attorney about this. Timing matters a lot.

You can check to see if you were issued an NTA by putting your A-number into this website: https://acis.eoir.justice.gov/en/

Always make sure that you have updated your most recent address with USCIS by filling out a change of address form on your USCIS account. If you do not have an account, you should make one.

This is something you need to talk to an attorney about right away. If you do not show up for your hearing, you can be removed "in absentia", which means you will have a removal order on your permanent immigration record and may be barred from entry or future U.S. visas.

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.

In some cases, yes. Nonproductive time can still be considered valid H-1B time. However, an employer would need to be fully supportive of this arrangement. They would generally need to continue paying you your regular salary (not marked as severance), not seek to withdraw your H-1B with USCIS, and ideally maintain you as an active employee in their records throughout this period. Please talk with an attorney if you are considering this type of arrangement.

In some cases, yes. Again, the start of the grace period is not clearly defined. This means there is room for interpretation. There are reasonable arguments you can make that the grace period does not start until after severance ends if it is not a lump sum amount. Specifically, if an employer continues to pay you your regular salary (not marked as severance pay) and does not seek to withdraw your H-1B status with USCIS. There is a lot of nuance to this so you should speak with an attorney before pursuing this strategy to fully understand the potential risks.

Possibly. Each state is different in their unemployment benefits administration and eligibility. Some states limit these benefits to permanent residents and do not allow benefits to flow to any foreign nationals. Some states take the position that an H-1B worker who loses their job is not “able and available to work” since a new employer has to file their own H-1B petition before you can begin working for them. Some states are fine with H-1B holders collecting benefits in certain circumstances. This question ultimately falls outside of the purview of federal immigration law (since it is actually state law, specific to each state), so it is recommended to speak with an employment lawyer licensed in your residing state. Waypoint generally cannot confirm the answer to this question, as our attorneys practice federal immigration law only.

Yes, you generally should be able to. Employers generally should be giving you the option to continue your health benefits, as required by Consolidated Omnibus Budget Reconciliation Act (COBRA). Alternatively, you can seek out other health care benefits depending on your state’s rules. There are a lot of personal considerations here but often continuing coverage with your former employer’s plan can be beneficial to prevent an interruption in medical care.

Possibly, and this is a grey area that has never been clarified by USCIS. If you are laid off in H-1B status, your employer has to pay the “reasonable costs of return transportation”, but it is not clear what “reasonable” is and for how long this obligation lasts. Typically, your employer will make an offer to pay for the costs of transportation home (last place of foreign residence) and may set a deadline for you to accept or decline the offer. However, this deadline is not a legal requirement and is more of a business practice. Even if you decline the offer, do not respond within the set deadline, or remain in the U.S. for some time, the employer may still be liable for these costs. There is a good argument that they are still liable, but they may disagree. Ultimately, enforcing this provision is generally treated as a contractual dispute and would require threatened or actual litigation to resolve.

It is also important to be aware that your former employer is generally liable to continue paying your regular H-1B salary until a proper termination is completed which involves these three steps: (1) notifying you of the termination; (2) notifying USCIS of the termination (usually in an H-1B withdrawal); and satisfying the requirement for costs of return transportation. We recommend consulting with an attorney to determine if your employer still owes you wages and transportation reimbursement.

Not necessarily. It is a good idea to check with your former employer on when they expect to submit the withdrawal of your H-1B petition. USCIS typically does not notify you as an individual when they receive a withdrawal (which is bitterly unfair and causes all kinds of issues). The best chance for you to confirm for sure is to check online, as it may be reflected in the case status online under your receipt number. This process is very inconsistent. USCIS does not have a reliable system for handling withdrawals or notifying individuals about withdrawals.

This automatically happens when your employer notifies USCIS that you are no longer working for them and USCIS processes the withdrawal notice. This typically does not have any impact on your ability to obtain H-1B status with a new employer.

Additionally, it should not matter if you pursue H-1B status now or in the future with a new employer. You could live abroad and decide to return years later. As long as you meet the eligibility requirements and either have time remaining in your six year maximum or qualify for an exception (such as having an I-140 approval) you should be able to do this without being subject to any cap lottery again.

If you remain outside the U.S. for one year or more, you can also opt to re-enter the H-1B cap lottery for a new six-year period. However, this is often not the best option, for many it is better to recapture unused H-1B time or rely on a post-sixth year exception.

A new employer can file an H-1B petition for you before the grace period expires, allowing you to stay in H-1B status. The petition just has to be received by USCIS before the end of the grace period, even as approval can happen later. You can also start working for that new employer based on the filing of the new H-1B petition (based on what is known as “H-1B portability”). Even though you can onboard after getting the receipt, many individuals choose to wait until the H-1B is approved for more certainty before joining the new employer. It is typically always beneficial to file the new H-1B petition under premium processing to control adjudication timelines.

If you do not have a firm job offer in hand by Day 45, there is not enough time for a new employer to file the H-1B petition within your grace period. This is because the LCA takes 7-10 days to be certified at the Department of Labor before the I-129 petition can be filed, and most firms require a minimum of two weeks to process the H-1B transfer petition. Even if job prospects look promising, you should proceed with your backup plan no later than Day 45.

Typically you should list an immediate start date if you file a new H-1B petition within the grace period. You can choose to either immediately begin work with that employer on filing the petition within the grace period or wait until an approval is issued.

Yes, premium processing is available and often a great idea. For a government filing fee of $2805 (which can be paid by either you or the employer) it guarantees USCIS will take action on your case within 15 business days of receipt (which often means a final decision within just a few weeks).

Yes, they do but it is tricky. This guidance has recently been archived, listing that it is out of date but that some content may still be useful. It is still beneficial to be aware of the guidance and read through it, but we do not know yet what USCIS specifically considers to be outdated information. This is why it is also important to speak with an attorney when navigating this transition.

https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/options-for-nonimmigrant-workers-following-termination-of-employment

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.

Typically, you do not need to submit evidence of financial support up front. There is no set figure here. A good rule of thumb is to show access to funds (ex. bank or other financial records) to cover a reasonable estimated cost of living expenses for a six month period (e.g. 20-30K+ of available funds for most major cities in the U.S.).

Generally, no. It should not be necessary to show a plane ticket for a B-2 change of status. However, we recommend that you purchase one to show good faith and prearranged plans to depart the U.S. if things don’t work out. This also shows you have the means and proper state of mind to prevent an overstay. It is generally a good idea.

If you file online, the receipt notice is usually available within a few minutes, or a few hours at most.

If you file on paper, the receipt notice usually takes 1-3 weeks to arrive. You should use mail tracking to confirm the date that USCIS receives your application while waiting for this receipt to arrive. You can also check the account you paid the filing fee from to see when USCIS takes the money from the account, which is a good indication that they have started processing the application. If you do not receive the receipt notice after 30 days of the application delivery date, you can contact USCIS to provide a new copy.

Unfortunately, there is no premium processing available for a B-2 change of status, regardless of whether filed online or in paper. That means that applicants have limited to no control over when USCIS takes action on the case and need to be prepared for that. Anecdotally, online filings can often be easier and faster than filing in paper form.

USCIS has been relatively fast, taking about 2-3 months in most cases. However, approval timelines have fluctuated significantly over the past few years. Sometimes processing times are closer to 4-5 months. They have also exceeded 6 months at times.

No, unfortunately this is not an option.

Yes, technically you can file an expedite request with USCIS. These are rarely granted and the standards are high (ex. urgent humanitarian reason). It could even hurt the processing of your application in some cases. We recommend speaking with an immigration attorney before proceeding to request an expedite of the B-2.

It could take longer than 6 months. This is a possibility, timelines are never guaranteed under regular processing. Right now estimated processing times are around 2-3 months, but this often changes. Sometimes it’s faster, sometimes slower. Given this uncertainty, the conservative approach is to plan to depart the U.S. before reaching 180 days from your last day of employment, unless your B-2 change of status is approved or you have obtained another valid nonimmigrant status (such as a new H-1B with another employer).

If you leave the U.S. without getting the B-2 approved, it will be denied for “abandonment”. This is a bit silly, because of course you have to leave before the decision is made to avoid falling out of status or accruing unlawful presence. So USCIS does not exactly encourage “legal” behavior here. However, don’t let the denial scare you. It is a normal part of the record and will not hurt your future visa chances as long as you can show the receipt notice showing that it was filed before your grace period ended, and that you did not stay more than 180 days in good faith.

If reading this worries you, feel free to talk to an attorney. Everyone’s situation is different, and even if you didn’t follow the best practices that we outlined above, as long as you acted reasonably and in good faith, you should be able to obtain your next nonimmigrant visa.

At the moment the chances of success should be good. Most B-2 applications for H-1B immigrants who were laid off are being approved for the full 6 month period. Immigration is always in flux though. It can never be guaranteed and things can shift rapidly which is why it is always good to speak with immigration attorney first.

You want to be careful with this. B-2 status is very limited. There is absolutely no work authorization when a B-2 change of status is pending or approved. Job searching, visiting friends and family, traveling to different areas within the U.S. should all be permitted. Other activities could be questioned. For example, you might be able to complete a short-term course in your field and argue that it is a “short course of study”, but you should make sure that nothing appears like you are going back to school in a way that would require an F-1 visa. Again, this will all be subject to interpretation so it is a good idea to speak with an attorney first. You want to ensure nothing you are doing could be considered work or full-time study (or earning academic credit toward a degree).

Yes, this should be considered permissible. USCIS has confirmed that this was permissible informally, over social media. It also does not run afoul of any existing prohibited B-2 activity.

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.

Unfortunately, while you can state a preference to the new employer, it will ultimately be their decision whether to file as “consular processing” or a “change of status.” This decision can be influenced by a variety of factors. Often, it may be preferable to file as a change of status to avoid the need for international travel. However, there are situations where consular processing may make more sense, depending on your individual circumstances. Please talk through this decision with your employer and their attorney, and advocate for yourself if change of status will be the best option for you.

Keep in mind that lots of the big firms representing big companies are pretty rigid. Many H-1B employees report that they are absolutely unwilling to consider filing as “change of status” due to the fact that they “don’t know for sure what will happen”. A lot of these departments are scarred from past policies that made it difficult to change status, and while these policies are no longer in place and things are a lot better now, the larger entities are slower to adapt to the times and may not be familiar with the current situation. Advocate for yourself but in a way that makes sense in the corporate environment that you will be joining.

You should usually list an immediate start date. If you are filing within the grace period, the start date should be before the grace period expires. If you are filing outside the grace period and have a pending or approved B-2 change of status, the start date should be within the additional 180-day period you are requesting for your B-2 status. It is important to coordinate timing carefully, so it is a good idea to speak with an attorney.

Yes, you can and most often it is recommended. A filing fee of $2,805.00 guarantees USCIS will take action on your case within 15 business days. Regular processing usually takes 4-6+ months.

An H-1B petition approved under “consular processing” means that you have to take additional steps to activate your H-1B status in the U.S. You must travel internationally, attend H-1B visa stamping (in some cases, you may be able to use a previously issued valid H-1B visa stamp), and re-enter the U.S. presenting your new H-1B approval notice. Only upon returning to the U.S. can you begin working for the new employer.

Ultimately, the decision on how to file the new H-1B petition, whether as an automatic “change of status” or through “consular processing” rests with your new employer and their immigration counsel. While you cannot control this decision, you can respectfully express your preference for a change of status and share any relevant factors that support that approach. For example, you might point out concerns about international travel, visa appointment backlogs, or difficulties obtaining a visa stamp abroad. These practical considerations can sometimes help make a compelling case for pursuing a change of status, especially when your new employer may want you to start working for them as soon as possible.

This can really depend. If your B-2 change of status is approved first and your new H-1B change of status is later approved, then generally you should be considered to be back in H-1B status. In that case, you should retain your immigration records showing your previously held B-2 status and no further action should be needed.

However, if your B-2 change of status and H-1B change of status are approved at the same time, it is important to consult with an attorney to review the approval notices carefully. You will want to confirm that the final action taken by USCIS was to place you back into H-1B status. If they were approved on the same day, you can consider yourself to be back on H-1B status.

Additionally, if your new H-1B petition is approved as a change of status or consular but the B-2 change of status is still pending, it may be worth speaking with an immigration attorney about whether you should consider withdrawing the pending B-2 to avoid any confusion about your current status.

Yes, you certainly can still file a new H-1B petition. The new petition can be for either cap-subject or cap-exempt employment. However, this does depend on your H-1B history. If your previous H-1B status was based on cap-exempt employment (such as at a nonprofit research institution or university) and you have never been selected in the H-1B cap lottery and assigned a cap number, then your future H-1B petitions must also be cap-exempt. You are not eligible for cap-subject employment unless you are selected in the lottery.

Sometimes staffing or consulting companies can sponsor H-1B visas, but they need to meet certain requirements, and these petitions are often subject to closer scrutiny by USCIS.

It is important to ensure that a genuine job opportunity exists that qualifies for H-1B sponsorship. Do your due diligence in vetting the company and be cautious of any staffing company that asks you to pay for any part of the H-1B petition or reimburse them for fees (employers are legally required to cover all costs associated with the petition, except for premium processing). You should not be paying any of these companies “training fees”, and the companies need to pay your H-1B salary regardless of whether you are placed at an active assignment.

Also, watch for vague job descriptions, a lack of details about the position, or no physical office address. A reputable company will be transparent about the job role, provide clear documentation, and be easy to verify.

Finally, the staffing or consulting company must provide in-house supervision of your work. They cannot provide the kind of service where they have you on payroll but have no other responsibility for you. They must manage your work in house even if you are placed on contract with another company.

Please be aware that there are numerous staffing companies attempting to take advantage of desperate immigrants right now by offering employment that is at best, dubious, and at worst, outright fraud. Working for a fraudulent company can result in a fraud finding on your individual record (and permanent ban from the U.S.), so be wary. Don’t fall for the scams. It is better for you to leave the U.S. and conduct a years’ long job search from abroad than to be employed by one of these fraudulent companies for even a day.

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.

Yes, they can! And it is good to have choices. However, logistically this can get complicated. Please talk through this with an attorney to understand all the options. But know that in general, it is very possible.

Yes, you can. You are allowed to work (part-time or full-time) for multiple H-1B employers at the same time as long as they both properly file an H-1B petition for you.

If they both filed full time petitions and you aren’t working for both full time, this is a problem. Both petitions need to accurately describe the work being done, and you need to do what was described.

However, you should also note that just because an H-1B was filed does not obligate you to work for the company. You can say “no” to a job at any stage, and at that point in time, the employer has the decision on whether to withdraw the petition or keep it active in the hopes you join in the future. You can work for multiple employers, but you do not have to work for multiple employers just because they filed your petition.

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.

If you are laid off while your self-petitioned I-140 (EB-1A or NIW) is pending or approved, the process can generally still continue. As these categories are not tied to a specific employer or job offer. It does not automatically jeopardize your case. However, it is important to assess with an attorney how to best ensure that your case can remain viable.

In this case, it is important to seek specific guidance based on your situation. Ideally, you should try to find a new H-1B employer who is prepared to begin the PERM/I-140 process as soon as possible. At the same time, you should evaluate all other available immigrant options that can be pursued concurrently (such as EB-1A and NIW). It is also important to consider alternative nonimmigrant visa options (such as O-1A).

You should be aware that people job searching in this situation are much less likely to obtain job offers. Employers are reluctant to hire people who will have status issues in the next few years. You should keep trying, but explore all your options.

Not anytime soon. Unfortunately, the EB-2 category is currently backlogged for all applicants. For those in the “all chargeability” category, there is still an estimated 2–5 year wait for the priority date assigned to an EB-2 I-140 approval to become current (visa bulletin is always subject to change). You can apply for work authorization benefits (an EAD) when you file for Adjustment of Status (AOS) and you can only file AOS once your priority date is current. So while an EB-2 NIW petition has many benefits, it does not typically provide immediate eligibility for an EAD.

If you have a priority date that is current (ROW is usually current but India and China have backlogs), then you can file an EB-1A I-140 concurrently with an I-485 to maintain status in the USA. However, this is not recommended for most people. You should only consider this if you have a very strong EB-1A case and have a backup plan in case the EB-1A is denied (because the I-485 will also be denied at some point after the EB-1A denial). Most people are better served by maintaining some kind of nonimmigrant status and taking the EB-1A process slower.

If your I-485 is pending, you have the legal ability to live in the U.S. on that basis alone. If you also have an EAD card, you also have work authorization. You may not need to take any action to maintain nonimmigrant status. However, it is advisable to look at your options and consider a backup status.

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).

They should also go back to H-4 status. It is best when the entire family files the H-1B/H-4/H-4 EAD together. It usually results in the smoothest process for everyone.

There is no prohibition on having extended family visit you in the U.S. while you are between jobs.

If they already have ESTA or B1/B2 visas, it is unlikely to cause issues. However, they could always be questioned about who they are visiting and what your status is and current employment situation. It is possible for CBP to refuse them entry if they think the whole family is trying to be together in the U.S. for the purpose of overstaying together. Most visits are low risk and won’t prompt questioning, but be prepared to explain the temporary nature of the stay and emphasize ties abroad.

If your family members do not have ESTA or B1/B2, it is usually unlikely that the consulate will grant them the B1/B2 visa while you are in the U.S., unemployed, on B-2 status. Your family members should wait to apply for the visa until your employment situation has resolved.

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.

Yes you can.

The implications for your travel depend on whether or not you have a valid H-1B visa stamp at the time of travel, and if you are traveling far in advance of starting your new job.

To re-enter the U.S., you need to show a valid H-1B visa stamp, valid H-1B approval notice, and proof of a bona fide job offer with the approved H-1B employer that starts within 10 days of your entry.

Don’t travel if you won’t be able to present all of these items upon returning.

You always need a valid visa stamp when traveling, except in some instances for short trips to Canada and Mexico which can be covered by a process called Automatic Visa Revalidation.

If you already have an unexpired visa stamp with your old employer’s information, you can still use it with your new employer’s H-1B approval notice.

If your old H-1B stamp expired, you will likely need a new one to re-enter the U.S. Talk to an attorney about automatic visa revalidation if getting a new stamp doesn’t seem possible.

Everyone needs a valid visa stamp to re-enter the U.S., except if they are applying for automatic visa revalidation after a quick trip to Canada or Mexico.

Yes you can! You do not need information to align across all documents. If you have 2 years or 2 weeks left on your old visa stamp, you can use it along with the new H-1B approval notice and proof of a bona fide job offer with the new employer to enter the U.S.

No you do not. Once you get the H-1B lottery, you are entitled to 6 years of H-1B status as long as you have a valid sponsor and qualifying employment.

We have seen some rare instances where some officials seem to get confused about the rules after 6 years have elapsed, so we don’t recommend spending more than 6 years outside the U.S. But there are also numerous stories of people being able to get back on H-1B even after 10 years of time outside the U.S., so talk to an attorney if you find yourself in this situation.

There are still some grey areas related to this question.

If you leave the U.S., time spent outside the U.S. is unequivocally not time spent in H-1B, so you can recapture this time.

In general, once you file the B-2 Change of Status (or any change of status application) and are no longer in the grace period, you are no longer accruing time against your 6-year maximum on H-1B. If the B-2 is never approved, you might face some complications proving this, so keep all of your records.

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.

Most of the time USCIS allows the transfer of these petitions to new employers over the summer months up until October. There are reports of random denials every year, but the trend is approval. You should find a new H-1B sponsor ASAP and transfer the H-1B to that new employer as soon as possible.

If you are handling the transfer after October, USCIS is more likely to insist on paystubs from the original sponsor. If you can negotiate being an employee for only a week or two at the original employer and figuring out projects where you can benefit the company and make those weeks worth it for them to hire you temporarily, this is definitely recommended.

Some H-1B transfers are approved after October without paystubs, but it becomes less and less likely the longer the elapsed time. Most H-1B petitions filed in this situation should be filed as “Consular”, and the H-1B applied from abroad.

Every year, there are people who end up with no H-1B and no OPT, out of luck completely who are victims of a bureaucratic system. Don’t let this be you! Advance planning and coordination will prevent it from occurring.

We typically recommend trying to transfer the H-1B first, and claiming H-1B status.

However, there will be some rare situations where it is better to give up any claim to H-1B status. In this scenario, you need your original H-1B sponsor to withdraw the pending or approved H-1B petition. You also need to inform your DSO about the withdrawal before October 1st.

Your SEVIS record will terminate automatically starting 10/1 if your H-1B sponsor filed an H-1B as “Change of Status” (and even sometimes terminate in error if they filed it “Consular”). It is incredibly important to get everything resolved before then.

Sometimes preventing the termination will require USCIS to actually acknowledge the withdrawal. This is very difficult, as the agency does not always prioritize these acknowledgements and can be difficult to work with. Keep detailed records and an open line of communication with your attorney (your personal attorney) and your DSO if you are stuck in this situation.

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.

Our client was laid off after a major restructuring of the business division he had been leading at a major company. He had just obtained an EB-1A approval through Waypoint, but his priority date was not yet current. He needed to maintain nonimmigrant status as a result. His spouse was in F-1 status, so he was eligible for F-2 status. After moving to F-2 status for a short time, he was able to resume employment by finding a new H-1B sponsor in the United States. His EB-1A priority date should become current soon.

Please download our guide outlining all the options!

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.

Choosing the right immigration path can be complex. Our attorneys will carefully evaluate your specific case, helping you understand which visa or immigration program (like EB-1A, EB-2 NIW, or H-1B) is the best fit based on your qualifications, goals, and timeline.

The EB-1A visa is for individuals with extraordinary abilities in science, arts, business, education, or athletics. The EB-2 NIW is for those with advanced degrees or exceptional abilities in their field who can demonstrate that their work is in the national interest of the U.S. Both have different requirements, and our team can help you determine which is most suitable for your situation.

Yes, we offer expert legal guidance to individuals facing layoffs or job termination, especially in relation to maintaining visa status, such as H-1B holders. We can advise on options for job portability, changing employers, or transitioning to other types of visas.

An H-1B Beneficiary Owner visa allows entrepreneurs who own a business to leverage that business as a sponsor for an H-1B visa, provided they meet certain criteria. If you are an entrepreneur looking to start or own a business in the U.S., we can help assess your eligibility and walk you through the process.

Yes, marriage to a U.S. citizen or permanent resident can provide a pathway to permanent residency. Our attorneys can guide you through the application process, ensuring all necessary documentation is submitted correctly.

Career planning related to immigration involves creating a strategy that maximizes your career growth while ensuring your visa and immigration status align with your professional goals. We help professionals navigate visa options like H-1B, EB-1A, or EB-2 NIW in line with their career aspirations.

Complex immigration matters include cases involving multiple visa applications, visa denials, criminal background issues, or any situation that requires specialized legal knowledge. Our attorneys have the experience to handle these more challenging cases effectively.

The I-129 Petition is used by U.S. employers to petition for non-immigrant workers. If you're considering an H-1B, L-1, or other non-immigrant visa, we can conduct a thorough review of your I-129 petition to ensure it is filed correctly and maximize your chances of approval. We also help you understand your status and future plans during our review session. This session is intended to complement the services that your employer’s attorney is providing to you, but from your perspective and not the company’s perspective.

The ETA 9089 PERM is the labor certification process required for certain employment-based green card applications. We offer case reviews for PERM applications to ensure they meet all regulatory requirements, increasing the likelihood of approval and giving you a safety net. We also help you understand your status and future plans during our review session. This session is intended to complement the services that your employer’s attorney is providing to you, but from your perspective and not the company’s perspective.

We value direct conversation with our clients. To ensure our expert advisors are always available when you need them, we use an automated calendaring system that allows you to easily schedule a time to speak with a Waypoint attorney. This ensures that when you're ready to discuss your case, we are fully dedicated to you and your immigration matters.

Waypoint Immigration focuses on personalized, direct communication. Unlike traditional law firms, we prioritize consistent access to an expert advisor who will guide you through every step of your immigration journey. Our streamlined calendaring system makes it easy to schedule conversations at times that work for you, ensuring your case is handled with full attention and care.

We offer initial consultations for many immigration matters. During the consultation, we'll assess your situation and provide clear guidance on next steps. Our fees are transparent, and we will provide a clear breakdown of costs before proceeding.

Yes, we assist clients globally with a variety of immigration processes, including visa applications, green cards, and other types of immigration relief, whether you're currently in the U.S. or abroad.

If your application is denied, we can help you understand the reasons for the denial and explore options for appeal, reapplication, litigation, or other remedies. Our experienced team can help you navigate through the complexities of handling a denial. We usually discount our rates to take the next steps on a case by case basis.