The short answer: an H-1B worker who is laid off does not lose status the same day. Under 8 CFR 214.1(l)(2), the grace period starts the day after employment ends and lasts up to 60 consecutive days, or until your I-94 expires if that comes first, and it is available only once per authorized validity period. You cannot work during the grace period, but you can do four things: have a new employer file an H-1B petition, file Form I-539 to change to another status, file Form I-485 if you are eligible, or apply for a "compelling circumstances" work permit if you have an approved I-140. If none of these is filed within the grace period, you generally need to leave the U.S. before it ends.
Note: On September 11, 2026, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register (91 FR 57807) to eliminate the 60-day grace period. Public comments are due November 10, 2026. As of October 29, 2026, it is only a proposal and no final rule has been issued, so people laid off now still get the 60-day grace period.
How does the 60-day grace period work?
| Topic | Current rule |
|---|---|
| Who it covers | E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, TN, and dependents (such as H-4) |
| Maximum length | 60 consecutive days, or until the end of the I-94 validity period, whichever is shorter |
| How often | Once per authorized validity period |
| Can you work? | No, unless you have separate work authorization |
| Guaranteed? | No. DHS may shorten or eliminate it at its discretion |
The grace period has existed only since January 17, 2017. Before that, a worker whose job ended was treated as having failed to maintain status. The DHS proposal would bring that approach back.
An example: if your I-94 runs another year and March 31 is your last day of employment, the grace period starts April 1 and runs through May 30. If your I-94 expires April 20, the grace period ends April 20. Which day counts as your last day, and whether a severance or paid-leave period counts as employment, depends on when the employment relationship actually ended. Use your employer's written notice to confirm.
What can you do during the grace period?
1. A new employer files an H-1B petition
If a new employer files Form I-129 within the grace period, you stay in status. Current H-1B holders can also use H-1B portability: you may start working for the new employer once the petition is properly filed, without waiting for approval. You generally do not need to go through the lottery again.
2. File Form I-539 to change to another nonimmigrant status
Common choices are B-2 visitor status (you will need a genuine visitor purpose), which keeps you in status while you plan your next step; H-4 or L-2 if your spouse holds H-1B or L-1; or F-1 if you plan to go back to school. You cannot work in B-2 status, and an F-1 change requires an I-20 from the school first. You also cannot work while the I-539 is pending.
3. File Form I-485 to adjust status
If your priority date is current and the green card case itself still stands (for example, a self-petitioned NIW or EB-1A case, a family-based case, or a sponsoring employer that still intends to employ you once you have the green card), you can file I-485 during the grace period. If the employer that laid you off is your green card sponsor, have an attorney evaluate your options first. If your I-485 has been pending 180 days or more and your I-140 is approved, AC21 lets you move to a "same or similar" job and keep the green card case going.
4. Apply for a compelling circumstances EAD
H-1B, H-1B1, L-1, O-1, and E-3 workers with an approved I-140 whose priority date is not yet current may file Form I-765 and show compelling circumstances, such as serious illness or disability of the worker or a family member, an employer dispute or retaliation, other substantial harm to the worker, or significant disruption to the employer. Losing your job, on its own, generally does not qualify. USCIS grants it at its discretion, it is issued in one-year periods, and it is a work permit, not a status.
Two more points. If your employer lets you go before your authorized stay ends and you choose to leave the U.S., the employer must pay the reasonable cost of your return trip. And once an I-140 has been approved for 180 days, the employer's withdrawal does not automatically revoke it. The priority date is a separate question: it can generally be kept unless the approval is revoked for fraud, material error, or the revocation or invalidation of the labor certification.
What to do in the first few days after a layoff
- Get your termination notice in writing, confirm your last day of employment, and mark the last day of the grace period on your calendar.
- Download your most recent I-94 record and check the expiration date.
- Ask your employer whether it will withdraw the H-1B petition, what the status of your I-140 is, and how return travel will be reimbursed.
- Work on two tracks at once: look for a new employer while preparing an I-539 or another backup filing. Do not wait until day 55.
- Your spouse's and children's H-4 status depends on yours, so plan for them too.
Frequently Asked Questions
1. Is the 60-day grace period automatic?
Not entirely. The regulation says DHS may shorten or eliminate the 60 days at its discretion. USCIS decides whether the grace period applies when it reviews the application you file afterward, such as a new employer's H-1B petition or an I-539.
2. Can I do freelance or part-time work during the grace period?
No. You cannot work during the grace period unless you have separate authorization, for example after a new employer files an H-1B petition and you start work under portability, or once you have an EAD.
3. Does a severance period count as still being employed?
It depends on when the employment actually ended. Some companies keep paying you during a notice period while you remain an employee; others end employment right away and pay a lump-sum severance. Go by your employer's written notice, and have an attorney look at it if you are unsure.
4. If I don't find a job within 60 days, can I switch to B-2?
You can file Form I-539 for B-2 within the grace period, and you will need a genuine visitor purpose. A timely, non-frivolous application generally stops unlawful presence from accruing while it is pending, but you cannot work. If you later find a new employer, it will need to file an H-1B petition, and whether you can change back to H-1B inside the U.S. needs to be evaluated case by case.
5. What happens if I stay past the grace period?
Once the grace period ends you are no longer maintaining status, and extending or changing status from inside the U.S. becomes difficult. Unlawful presence generally starts accruing after your I-94 expires: leaving after more than 180 days but less than one year of unlawful presence triggers a 3-year bar on returning, and leaving after one year or more triggers a 10-year bar. If your grace period has already passed, talk to an immigration attorney as soon as possible.
Sources
- 8 CFR 214.1(l)(2) (60-day grace period)
- 8 CFR 204.5(p) (compelling circumstances employment authorization); 204.5(e)(2) (retaining the priority date)
- 8 CFR 245.25 (valid job offer required for an employer-sponsored I-485)
- USCIS Policy Manual, Volume 10, Part B, Chapter 3 (compelling circumstances EAD)
- USCIS: Unlawful Presence and Inadmissibility
- DHS, Eliminating the Discretionary 60-Day Grace Period, 91 FR 57807 (September 11, 2026), DHS Docket No. USCIS-2026-0364
- 81 FR 82398 (November 18, 2016) (AC21 final rule, effective January 17, 2017)
- INA §214(n) (H-1B portability); INA §204(j) (AC21 job portability); INA §212(a)(9)(B) (3- and 10-year bars)
- 8 CFR 214.2(h)(4)(iii)(E) (employer pays return transportation); 8 CFR 205.1(a)(3)(iii)(C) (I-140 approved 180 days or more not automatically revoked on withdrawal)
Lingtu Law APC
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