H-1B Layoffs and NIW

H-1B layoffs leave workers just 60 days to stay employed or leave the U.S. | Adobe Stock

By Helen Partlow, Managing Attorney at Waypoint Immigration USA

Laid Off on H-1B? The NIW Won’t Save Your Status—But It Could Shape Your Future

Losing your job is always unsettling. But for those working in the U.S. on an H-1B visa, it brings a unique set of challenges that go far beyond updating a résumé or preparing for interviews. Your immigration status is suddenly on the clock, and the rules can feel confusing, fast-changing, and unforgiving.

If you’re an H-1B holder recently laid off, know this: you are not alone, and there are clear, strategic steps you can take right now to protect your future in the U.S.

The 60-Day Grace Period: What It Is and What It’s Not

First things first: U.S. immigration regulations provide a maximum 60-day grace period following the end of your H-1B employment. This window begins the day after you stop receiving wages, not necessarily your last day on a payroll system if severance is involved. During this time, you are considered in a valid period of authorized stay, but you are not authorized to work.

This grace period exists to give you the breathing room to transition, whether that’s finding a new job, changing your immigration status, or making arrangements to leave the U.S. But once that clock runs out, things get much more serious. Staying beyond the 60 days without taking action can result in unlawful presence, which may bar you from returning to the U.S. for years.

Your Options

Let’s walk through the main pathways available to H-1B workers during this transition.

1. Transfer Your H-1B to a New Employer

If you find a new job within your grace period, your new employer can file a Change of Employer petition. Once it’s received by USCIS, you can start working, even before the petition is approved. But time is of the essence: the petition must be filed before your 60-day grace period ends. If you're down to the last two or three weeks, it's critical to communicate urgency to the new employer's immigration counsel.

2. Change of Status (COS)

Can’t find a new job in time? You can apply to change your immigration status to something else, B-1/B-2 visitor, F-1 student, or a dependent status (if your spouse has a qualifying visa). For example:

• B-1/B-2 Visitor: This is often used as a bridge to remain in the U.S. while job searching, but it's important to apply early. If you do find a new job, USCIS will generally process your COS and new H-1B petition together, provided it's filed under premium processing.

• F-1 Student: Going back to school can be a viable route for those looking to invest in education while maintaining legal status, but make sure you’re genuinely pursuing studies and complying with all F-1 requirements.

• Dependent Status (e.g., H-4, L-2): If your spouse has a visa or green card process underway, you may be able to shift to a dependent status, and in some cases, apply for work authorization.

3. Compelling Circumstances EAD

If you have an approved I-140 and are unable to secure another job quickly, you may qualify for a Compelling Circumstances Employment Authorization Document (EAD). This allows you to remain and work in the U.S. for up to a year based on serious hardship, such as a medical crisis or employer retaliation. However, note that this EAD doesn't count as being in valid “status,” so it cannot lead directly to a green card.

4. Self-Petition Green Card Options

You might also be eligible for an immigrant petition without needing an employer. Both EB-2 National Interest Waiver (NIW) and EB-1A Extraordinary Ability categories allow individuals to petition for permanent residence based on their achievements and future plans. While these options aren’t quick fixes, they can be powerful long-term strategies for those who qualify.

Avoiding Common Pitfalls

• Don’t wait until Day 59 to take action. If you don’t have a solid offer coming by the 45th day, consider initiating a change of status or speaking to an attorney about other options.

• No working during the grace period. Even unpaid work can count against you if it's deemed unauthorized.

• Travel is risky during the grace period. Exiting the U.S. ends your grace period immediately, and re-entry may be denied without a valid new status.

• If you depart, know that your employer is legally obligated to cover reasonable transportation costs back to your home country.

How does filing an EB-2 NIW Play Into These Scenarios?

We talk to professionals every day who are navigating this stressful moment. Many are asking: “Can I file a National Interest Waiver (NIW) petition instead of scrambling for a new job or visa?”

The short answer: The NIW can be a smart part of your immigration strategy, but it does not give you legal status. That means if you’ve been laid off, you still need a short-term plan to maintain lawful presence in the U.S.

Let’s unpack what this means.

USCIS will not treat you as legally present in the U.S. just because your NIW petition is pending.

The EB-2 National Interest Waiver allows you to self-petition for a green card if:

• Your work has national importance and substantial merit

• You’re well positioned to advance that work

• It’s in the U.S. interest to waive the job offer and labor certification requirements

It’s a great option for highly skilled professionals who want independence from employer sponsorship. But it’s a green card petition, not a visa. Filing an I-140 under NIW is only the first step. You can’t apply for a green card (adjustment of status or consular processing) until your priority date is current under the visa bulletin. That could be months, or years, away depending on your country of birth.

So while the NIW is incredibly useful for long-term planning, it will not fix your immediate status issue.

If you’re considering filing an NIW, but you’ve just been laid off, you still need to maintain or transition into a valid nonimmigrant status while your I-140 is pending or until your priority date becomes current. Here are some of the most common paths:

• Transfer to another employer’s H-1B: If you can secure a new job quickly, this is the cleanest route. The new petition must be filed within the 60-day grace period.

• Apply for a change of status: Switching to B-2 (visitor), F-1 (student), or a dependent visa can help you stay in the U.S. legally while you plan your next steps.

• Compelling Circumstances EAD: If you have an approved I-140 from any category and meet hardship criteria, you may qualify for a temporary work permit. But again—this is not “status.” It allows you to work legally, but not to file for a green card until your priority date is current.

• Leave the U.S. and continue the NIW process from abroad: Some people choose to leave and re-enter when they’re eligible to get their green card. Others stay abroad long-term and process through a U.S. consulate.

We’ve helped many clients use a layoff as a catalyst, not just to find a new job, but to take ownership of their immigration future. Filing an NIW petition doesn’t solve everything today, but it can remove the employer dependency that has defined much of your journey so far.

If you’ve been consistently working in a field like AI, biotech, cybersecurity, education, climate science, or other areas of national relevance, there’s a real chance you qualify for an NIW. And that means you may have more options than you think, as long as you pair it with a valid status strategy.

You're Not Alone—and You Don’t Have to Navigate This Alone

At Waypoint Immigration, we’ve helped hundreds of H-1B holders develop smart legal strategies following layoffs. We know how overwhelming this moment can be, and we’ve built resources specifically for this situation, including a comprehensive FREE H-1B Layoff Survival Guide that breaks down your legal options, timelines, and potential pitfalls in plain English.

👉 Download our free H-1B layoff guide here: https://www.waypointimmigration.org/h1b-layoffs

Whether you need to pivot to a new job, shift your visa category, or plan long-term immigration goals, our team is here to help. Don’t guess. Don’t wait. Take control.