Expert Help After H-1B Layoff
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You have limited time to act—but you're not alone. Waypoint Immigration USA helps H-1B workers navigate layoffs with personalized legal strategies.
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We specialize in complex employment-based immigration cases—including urgent layoff-related matters. With decades of combined experience, we provide fast, reliable legal guidance when you need it most.
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• Flat $693 total vs. $1.5–3k elsewhere
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• 1‑on‑1 attorney consultation to map tailored strategy
• Final screen‑share call to review your I‑539 and evidence
• Counsel versed in H‑1B layoff scenarios
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• Step‑by‑step DIY guide
• Grace‑period tracking
• Status‑switch playbook to avoid lapses
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Overview of Service: B-2 Change of Status After H-1B Layoff
Understanding Your Options After an H-1B Layoff
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FAQs
These FAQs are for people who were laid off while on H-1B status.
If you were on a different status, please schedule a Consultation with us for more individualized advice.
This FAQ might not be relevant for you as it is tailored to H-1B workers.
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.
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.
Testimonials
AJ
Laid off from NXP Semiconductors:
"After my unfortunate layoff from NXP in January, I reached out to Waypoint for help regarding immigration questions. During our call, Amber answered my questions thoroughly and told me about the next steps based on whether I am able to find a job within the 60 days or not. I was worried about changing status to B-2 and how I would go back to H-1B status. They helped with those queries. Later as a backup plan I took Waypoint’s help for changing status to B-2. Alex was very thorough, and she double checked the I-539 application. Later, she answered all my questions regarding how to withdraw if H-1B is filed within 60 days. Even after these two calls Amber and Alex have been helpful and have guided me regarding traveling outside the US and re-entering."
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