Employment-based immigrationH-1B Layoff in 2026: 60-Day Grace Period, New Employer, B-2, H-4 and Green Card Options

September 23, 2026by Vitaliy Malyuk
Updated September 23, 2026

Laid off on H-1B? Start with the 60-day clock and your I-94

If H-1B employment ends, the worker may generally be considered to have maintained H-1B status for a discretionary period of up to 60 consecutive calendar days after termination, or until the end of the authorized nonimmigrant validity period, whichever is shorter. This grace period is available only once during each authorized validity period. It does not by itself authorize employment. Before the applicable deadline, the worker may need a new H-1B filing, a qualifying change or adjustment of status, another employment-authorized route, or departure from the United States.

Current rule on September 23, 2026: the H-1B 60-day grace period remains in effect under 8 CFR 214.1(l)(2). DHS published a proposed rule on September 11, 2026 that would eliminate the discretionary 60-day period, but it is an NPRM—not a final rule. Comments are due November 10, 2026. Until the rule changes, the existing up-to-60-day framework remains operative.

H-1B employment ends → what are the main routes?

1. Confirm when H-1B employment terminated

USCIS states that the maximum grace period begins the day after termination of employment. USCIS typically looks to the last day for which salary or wages are paid when determining the termination date.

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2. Check the actual deadline

Up to 60 consecutive calendar days or the end of the authorized validity period, whichever occurs first—and only once during each authorized validity period. DHS may shorten or eliminate the grace period as a matter of discretion.

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3. Choose the route that fits the case
New H-1B employer A new employer files its own H-1B petition. If portability requirements are met, qualifying employment may begin upon filing of the nonfrivolous petition or on the requested employment start date, whichever is later.
Change of status to B-2 A timely, nonfrivolous B-2 change-of-status request may provide a period of authorized stay for a legitimate temporary visitor purpose. B-2 does not authorize employment.
H-4 Potential dependent-status option when a spouse independently maintains qualifying H-1B status. H-4 status itself does not authorize employment; some H-4 spouses separately qualify for an EAD.
F-1 Possible when there is a genuine academic purpose, admission to a qualifying school and a valid Form I-20. The 2026 fixed-period rule did not take effect on September 15 because a federal court postponed its effective date.
O-1 Potential alternative for a worker whose record independently satisfies the O-1 extraordinary-ability or extraordinary-achievement standard and who has a qualifying U.S. petitioner or agent.
Departure from the United States If no qualifying filing can be made in time, departure before the applicable deadline may avoid a status violation. USCIS states that departure ends the grace period; unused days cannot simply be resumed after a later entry.
Pending I-485 If a qualifying employment-based Form I-485 has been pending for at least 180 days, INA 204(j) portability may allow a move to a new permanent job in the same or a similar occupational classification.
Approved I-140 An approved I-140 does not itself provide H-1B status or employment authorization, but it can preserve a priority date, support certain beyond-six-year H-1B strategies and, in narrower circumstances, support eligibility for a compelling circumstances EAD.
EB-2 NIW or EB-1A These immigrant categories may reduce dependence on a traditional employer-sponsored PERM process where the eligibility requirements are met, but filing an I-140 does not stop the H-1B grace-period clock or independently authorize employment.

When does the H-1B 60-day grace period start?

USCIS states that the maximum grace period begins the day after termination of employment. USCIS typically determines termination by looking at the last day for which salary or wages are paid. The termination notice, separation agreement and payroll records should therefore be reviewed together rather than relying only on the date a final payment reaches the worker's bank account.

Current calculation: count from the day after termination, but stop at the earlier of 60 consecutive calendar days or the end of the authorized nonimmigrant validity period. The grace period is discretionary and may be used only once during each authorized validity period.

Severance does not automatically extend H-1B status

A lump-sum severance payment, COBRA coverage, continued benefits or other compensation paid after employment ends does not by itself keep H-1B employment active. A different analysis may be necessary when the separation arrangement actually keeps the worker employed and paid salary or wages through a defined termination date. The documents and facts—not simply the word “severance”—control the analysis.

The I-94 can shorten the window

The regulation does not add 60 days beyond the existing authorized period. If employment ends when only 18 days remain in the controlling H-1B validity period, the potential grace period cannot extend beyond that earlier expiration date.

Check the most recent Form I-94, including any later I-94 attached to a Form I-797 approval notice. The expiration date on an H-1B visa stamp addresses visa validity for travel and admission; it does not by itself determine how long the person may remain after admission.

Official I-94 system: CBP Form I-94

Leaving the United States ends the grace period

USCIS states that the grace period ends when the worker departs the United States. A later return requires another valid basis for admission. Unused grace-period days do not function like a balance that can be preserved and resumed after reentry.

September 2026 rulemaking: DHS published the proposed rule “Eliminating the Discretionary 60-Day Grace Period” on September 11, 2026. The proposal would remove 8 CFR 214.1(l)(2), but it has not yet done so. The comment period runs through November 10, 2026.

Official Federal Register publication: Eliminating the Discretionary 60-Day Grace Period — NPRM

New H-1B employer after layoff: portability and premium processing

A new employer does not take ownership of the previous H-1B petition. The new petitioner normally completes the required Labor Condition Application and files its own Form I-129 H-1B petition.

Under 8 CFR 214.2(h)(2)(i)(H), an eligible H-1B nonimmigrant may begin concurrent or new employment upon filing of the nonfrivolous H-1B petition or as of the requested start date, whichever is later. The worker must also satisfy the remaining portability requirements, including having been lawfully admitted or otherwise provided H-1B status, having the new petition filed before the relevant period of authorized stay expires, and not having engaged in unauthorized employment since the most recent admission.

Issue
H-1B portability
What it can do
Can permit qualifying employment with the new petitioner upon filing or on the requested start date, whichever is later.
Important limit
The new petition must satisfy the portability rules, and filing does not guarantee ultimate approval.
Issue
Premium processing
What it can do
Requests USCIS adjudicative action within the applicable premium-processing timeframe; H-1B Form I-129 cases generally use a 15-business-day timeframe.
Important limit
The action may be approval, denial, RFE, NOID or another qualifying adjudicative action. Premium processing does not strengthen the underlying petition.
Issue
Previously cap-counted worker
What it can do
A worker previously counted against the H-1B cap can often move to another cap-subject employer without a new annual cap selection if otherwise eligible.
Important limit
The new employer still needs its own qualifying H-1B petition.

For qualifying Form I-129 premium-processing requests subject to the fee schedule effective March 1, 2026, the premium-processing fee is $2,965.

September 2026: entry proclamation and the $100,000 payment litigation

On September 18, 2026, the President extended for another 12 months the H-1B entry restrictions originating in the September 2025 proclamation, through September 21, 2027. The extended proclamation again states that covered H-1B entry and petition cases involving workers outside the United States are subject to a $100,000 payment condition, subject to the exceptions described in the proclamation.

That text must be distinguished from the present enforceability of the government's implementation policy. On June 8, 2026, a federal district court vacated the agency actions that implemented and enforced the $100,000 requirement. On July 24, 2026, the U.S. Court of Appeals for the First Circuit declined to stay that judgment pending appeal.

The September 18 action extends the earlier proclamation rather than replacing it with a wholly separate payment program. Current post-extension guidance from major U.S. immigration counsel therefore treats the prior vacatur as continuing to bar USCIS from collecting the $100,000 payment under the extension. However, the proclamation itself again contains the payment condition, the government's appeal remains pending, and agencies could issue new implementation guidance or take a different position that would likely produce additional litigation.

Current position on September 23, 2026: employers should not assume that the renewed proclamation makes the $100,000 payment currently collectible, but they also should not rely on the litigation status without checking the latest USCIS, Department of State and court guidance immediately before a consular-processing filing, visa application or international travel.

The September 18, 2026 Executive Order separately directs the Departments of State, Labor and Homeland Security to consider whether an H-1B sponsoring employer directly or indirectly engaged in layoffs during the previous year or plans layoffs negatively affecting similarly situated U.S. workers. This increases the relevance of the new petitioner's own employment practices; it does not create an automatic prohibition on a laid-off H-1B worker changing employers.

For a worker already in the United States: first determine whether the new case qualifies as an in-country H-1B portability filing. Do not assume that the proclamation or the $100,000-payment litigation replaces the ordinary portability analysis.

B-2, H-4, F-1, O-1 or departure after an H-1B layoff

Each route solves a different problem: some provide a basis to remain but not to work, while others require a qualifying employer, spouse, academic program or separate eligibility standard.

B-2

Change of status to B-2

A timely, nonfrivolous Form I-539 request to change from H-1B to B-2 may allow the worker to remain in a period of authorized stay while USCIS adjudicates the request, assuming the applicant otherwise qualifies and has a legitimate temporary visitor purpose.

B-2 does not authorize employment. USCIS has explained that searching and interviewing for jobs may occur in B-1/B-2 status, but employment cannot begin until the person has an independent basis for employment authorization.

If a new H-1B employer appears while the B-2 request is pending, the later H-1B filing must be structured so that the requested change back to H-1B and the lawful employment start date are clear. A pending B-2 application itself is not work authorization.
H-4

Change to H-4 through an H-1B spouse

H-4 can be available when the worker's spouse independently maintains H-1B status. H-4 status itself does not authorize employment.

Certain H-4 spouses can apply for employment authorization under category (c)(26) when the H-1B principal spouse is the beneficiary of an approved Form I-140 or has received qualifying H-1B status under the applicable AC21 provisions.

Important: if the laid-off worker personally has an approved I-140 but changes to H-4 based on the other spouse's H-1B, the laid-off worker's own I-140 does not automatically establish H-4 EAD eligibility. The qualifying immigrant-petition or AC21 basis must relate to the H-1B principal spouse.

H-4 EAD in 2026: Eligibility, Renewal Timing and Work Gaps

F-1

Change to F-1 student status

F-1 can be appropriate when the individual has a genuine educational objective, admission to a qualifying SEVP-certified school and a valid Form I-20. Employment in F-1 is limited to employment specifically permitted under the student rules.

DHS issued a 2026 final rule that would have replaced the longstanding Duration of Status framework with fixed admission periods. On September 14, 2026, however, the U.S. District Court for the District of Massachusetts postponed the rule's effective date before its scheduled September 15 implementation. The prior Duration of Status framework therefore remains operative while that court order remains in effect.

September 14, 2026 federal court order

O-1

O-1 for a qualifying extraordinary-ability profile

O-1 may be relevant to researchers, executives, engineers, scientists, founders, artists and other professionals whose evidence independently satisfies the O-1 requirements. A qualifying U.S. employer or agent must petition for the worker.

O-1 does not provide H-1B-style portability. A worker generally cannot begin O-1 employment solely because a new O-1 petition has been filed.

Departure

Departure before the deadline

If no qualifying filing can be completed within the available period, leaving the United States before the applicable authorized-stay deadline may avoid a status violation. A later return requires a valid basis for admission.

If the H-1B employer dismisses the worker before the end of the authorized period of admission, the employer is liable for the reasonable costs of return transportation to the worker's last place of foreign residence. The regulation treats voluntary termination differently: if the worker voluntarily leaves the employment before the petition validity period expires, the worker has not been “dismissed” for this return-transportation rule. This obligation is separate from severance, COBRA, relocation benefits or other contractual payments.
Option
New H-1B
Main use
Can preserve an H-1B employment route and permit qualifying work under portability rules.
Main limitation
Requires a qualifying petitioner and approvable H-1B filing.
Option
B-2
Main use
Can provide a temporary authorized-stay strategy while evaluating next steps.
Main limitation
No employment authorization.
Option
H-4
Main use
Dependent status through a qualifying H-1B spouse.
Main limitation
Employment requires separate H-4 EAD eligibility and authorization.
Option
F-1
Main use
Genuine academic study under the student-status rules.
Main limitation
Employment is restricted and the academic purpose must independently qualify.
Option
O-1
Main use
Alternative employment classification for qualifying extraordinary-ability cases.
Main limitation
Higher evidentiary threshold and no H-1B-style portability.
Option
Departure
Main use
Avoids remaining beyond the applicable authorized period when no timely filing is available.
Main limitation
Future return requires a valid admission basis and may involve consular or proclamation issues.

PERM, approved I-140 and pending I-485 after an H-1B layoff

The relevant green-card stage is usually one of four: pending PERM, approved I-140, I-485 pending for fewer than 180 days, or I-485 pending for at least 180 days.

Stage
Pending PERM
Effect of layoff
PERM is tied to the sponsoring employer and permanent job opportunity. It does not create immigration status or employment authorization.
Main question
Does the sponsoring employer still intend to offer the permanent position, and is there a separate H-1B or other status strategy?
Stage
Approved I-140
Effect of layoff
The approval may preserve benefits even if the original employer's permanent job offer no longer exists.
Main question
Can the priority date be retained, does the petition remain approved after withdrawal, and is a beyond-six-year H-1B provision available?
Stage
I-485 under 180 days
Effect of layoff
The original permanent job offer remains especially important and INA 204(j) portability is not yet available.
Main question
Can the underlying employment-based case remain viable until another lawful basis or the portability threshold applies?
Stage
I-485 180+ days
Effect of layoff
A qualifying new permanent job may support portability under INA 204(j).
Main question
Is the new job in the same or a similar occupational classification, and is the underlying immigrant petition otherwise valid?

Approved I-140: priority date and withdrawal

Under 8 CFR 204.5(e), an approved EB-1, EB-2 or EB-3 petition generally provides a priority date that can be retained for a later qualifying EB-1, EB-2 or EB-3 petition. Exceptions include specified revocation grounds such as fraud or willful material misrepresentation, revocation or invalidation of the underlying labor certification, or material error in the original petition approval.

Separately, the regulations provide protections for certain approved employment-based petitions withdrawn after relevant 180-day thresholds. These protections do not mean that the original permanent job offer continues to exist, so priority-date retention, I-140 validity and continued adjustment eligibility should be analyzed separately.

Priority-date retention is not job-offer portability. Retaining an old priority date does not allow a new employer simply to adopt the previous employer's PERM position.

H-1B time beyond the normal six-year limit

Under 8 CFR 214.2(h)(13)(iii)(D), qualifying PERM or I-140 filings that satisfy the applicable 365-day requirement may support H-1B time beyond the normal six-year limit in increments of up to one year while the regulatory conditions remain satisfied.

The separate rule at 8 CFR 214.2(h)(13)(iii)(E) is narrower. A worker who currently maintains or previously held H-1B status and is the principal beneficiary of an approved immigrant petition under EB-1, EB-2 or EB-3 may qualify for H-1B status beyond six years when the worker is otherwise eligible to receive that immigrant status but for application of the per-country limitation. USCIS may approve qualifying petitions under this provision in increments of up to three years.

An approved I-140 plus any Visa Bulletin backlog is not automatically enough for a three-year H-1B extension. The H-1B petitioner must establish the specific per-country-limitation basis required by 8 CFR 214.2(h)(13)(iii)(E).

H-1B Max-Out Calculator: PERM, I-140, EB-2 and EB-3 Timing

Pending I-485 and AC21 portability

A pending Form I-485 is not the same as maintaining H-1B nonimmigrant status, and the I-485 itself does not authorize employment. Employment generally requires a valid EAD or another independent employment-authorized basis.

For qualifying job-offer-based EB-1, EB-2 and EB-3 adjustment cases, INA 204(j) can allow the underlying immigrant petition to remain valid after the I-485 has been pending for at least 180 days if the applicant moves to a new permanent job in the same or a similar occupational classification.

USCIS uses Form I-485 Supplement J in applicable cases to request portability and confirm the new bona fide permanent job offer. Job title alone is not determinative; duties, responsibilities, skills, education, training and other occupational evidence may be relevant.

EB-1A and EB-2 NIW differ because the ordinary permanent job-offer requirement is absent or waived. These categories may provide an independent immigrant strategy for a person who qualifies, but an I-140 filing alone does not extend H-1B status or create employment authorization.

Compelling circumstances EAD after an H-1B layoff

A compelling circumstances EAD under category (c)(35) is a narrow option for some principal beneficiaries of approved EB-1, EB-2 or EB-3 immigrant petitions who cannot yet obtain permanent residence because an immigrant visa is unavailable.

Initial eligibility point
Approved immigrant petition
What USCIS requires
The applicant must be the principal beneficiary of an approved Form I-140 in the EB-1, EB-2 or EB-3 preference category.
Initial eligibility point
No filed I-485
What USCIS requires
For an initial category (c)(35) request, USCIS instructions require that the principal applicant has not filed Form I-485.
Initial eligibility point
Qualifying status at filing
What USCIS requires
The principal applicant must be in valid E-3, H-1B, H-1B1, O-1 or L-1 status, including an applicable authorized grace period, when Form I-765 is filed.
Initial eligibility point
Immigrant visa unavailable
What USCIS requires
An immigrant visa must not be authorized for issuance based on the applicant's priority date when Form I-765 is filed.
Initial eligibility point
Compelling circumstances
What USCIS requires
USCIS must determine, as a matter of discretion, that the evidence establishes compelling circumstances justifying employment authorization.
Initial eligibility point
Criminal-history bar
What USCIS requires
Employment authorization under 8 CFR 204.5(p), including renewal, is unavailable if the applicant has been convicted of any felony or two or more misdemeanors.

USCIS identifies nonexclusive examples that may support a compelling-circumstances finding, including serious illness or disability, an employer dispute or retaliation, substantial harm to the applicant, or significant disruption to the employer. Job loss alone does not automatically establish eligibility; the circumstances and supporting evidence matter.

This EAD is not a continuation of H-1B status. USCIS explains that a person with a valid compelling-circumstances EAD is considered to be in a period of authorized stay and therefore does not accrue unlawful presence solely during that authorized period.

However, using this route can materially affect the green-card path. USCIS states that a person working under a compelling-circumstances EAD generally would not be eligible to file Form I-485 merely on the basis of that authorized-stay period when the priority date later becomes current. The person may instead need to pursue immigrant visa processing through a U.S. consulate abroad unless another lawful basis establishes adjustment eligibility. This consequence should be evaluated before choosing the EAD as a post-layoff strategy.

USCIS Instructions for Initial and Renewal Employment Authorization in Compelling Circumstances

H-1B layoff checklist before the grace-period deadline

1. Confirm the termination date. Compare the termination notice, payroll records and separation agreement. Do not calculate the grace period solely from the date a severance payment arrives.
2. Locate the controlling I-94. Check the CBP record and any later Form I-797 containing a replacement I-94. The authorized validity period can end before day 60.
3. Confirm whether a grace period was already used during the same authorized validity period. The up-to-60-day grace period is available only once during each authorized validity period.
4. Collect all H-1B approval notices. Prior approvals help establish cap history, H/L time already used, possible recapture and whether the normal six-year maximum is approaching.
5. Start a new-employer filing early. A prospective employer may need time for internal approval, the Labor Condition Application and preparation of the Form I-129 package. A job offer alone does not stop the grace-period clock.
6. Identify the exact green-card stage. Separate pending PERM, approved I-140, I-485 under 180 days and I-485 at least 180 days. Those stages produce different post-layoff options.
7. Record key green-card dates. The PERM filing date, I-140 approval date, any I-140 withdrawal date and the I-485 receipt date can affect later H-1B or adjustment analysis.
8. If considering H-4, review the H-1B spouse's case. H-4 EAD eligibility depends on the H-1B principal spouse's qualifying I-140 or AC21 basis—not simply on the laid-off worker's own approved petition.
9. If considering a compelling circumstances EAD, verify all threshold conditions. For an initial category (c)(35) request, check the approved I-140, absence of a filed Form I-485, qualifying status at filing, immigrant-visa availability, compelling circumstances and the criminal-history restriction in 8 CFR 204.5(p)(5).
10. Recheck fast-changing rules before travel or filing. The proposed elimination of the 60-day grace period, the H-1B entry proclamation, the $100,000-payment litigation and the F-1 litigation are active issues as of September 23, 2026.

H-1B layoff FAQ

Does every laid-off H-1B worker automatically get exactly 60 days?

No. The current regulation provides a discretionary period of up to 60 consecutive calendar days after cessation of employment or until the end of the authorized validity period, whichever is shorter. It is available only once during each authorized validity period, and DHS may shorten or eliminate the period in an individual case.

Is the H-1B 60-day grace period still in effect in September 2026?

Yes. DHS proposed eliminating it on September 11, 2026, but the publication is a Notice of Proposed Rulemaking, not a final rule. As of September 23, 2026, 8 CFR 214.1(l)(2) remains operative.

When does the H-1B 60-day clock start?

USCIS states that the maximum grace period begins the day after termination of employment and typically looks to the last day for which salary or wages are paid when determining termination.

Does severance automatically extend H-1B status?

No. Post-termination severance, COBRA or other benefits do not automatically extend H-1B status. If salary or wages continue because the employment relationship itself continues through a later termination date, the underlying documents and facts need to be evaluated.

When can I start working for a new H-1B employer under portability?

If the H-1B portability requirements are satisfied, the worker may begin new employment upon filing of the qualifying nonfrivolous H-1B petition or on the requested start date in the petition, whichever is later. Filing does not guarantee final approval.

Does premium processing create H-1B portability?

No. Portability and premium processing are separate mechanisms. Premium processing accelerates USCIS adjudicative action; it does not create the underlying employment authorization and does not guarantee approval.

Can I change to B-2 if I cannot find a new H-1B employer immediately?

Potentially. A timely, nonfrivolous B-2 change-of-status request may provide a period of authorized stay if the applicant qualifies, but B-2 does not authorize employment.

Did the new F-1 fixed-period rule take effect on September 15, 2026?

No. A federal court postponed the rule's effective date on September 14, 2026. The prior Duration of Status framework therefore remains operative while the court order remains in effect.

Is the $100,000 H-1B payment currently being collected?

The September 18, 2026 proclamation again states a $100,000 payment condition for covered cases and extends the underlying entry restriction through September 21, 2027. However, the prior agency implementation policy was vacated by a federal district court, and the First Circuit declined to stay that judgment pending appeal. Current post-extension immigration guidance generally treats USCIS as still barred from collecting the payment under the extended proclamation, but the government could issue new implementation guidance or take a different position while the appeal remains pending. The current USCIS, Department of State and court position should therefore be checked immediately before a filing or travel decision.

Does an approved I-140 allow me to remain in the United States after an H-1B layoff?

No. An approved I-140 is not nonimmigrant status and does not itself authorize employment. It can still matter for priority-date retention, beyond-six-year H-1B planning and other immigration options.

Does any approved I-140 automatically provide another three years of H-1B?

No. The up-to-three-year provision in 8 CFR 214.2(h)(13)(iii)(E) applies to a qualifying principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant petition who is otherwise eligible for that immigrant status but for application of the per-country limitation.

What if my employment-based I-485 has been pending for at least 180 days?

INA 204(j) may permit a qualifying job-offer-based adjustment applicant to move to a new permanent job in the same or a similar occupational classification. Form I-485 Supplement J is used in applicable cases to request portability and confirm the new bona fide permanent job offer.

Can an approved I-140 support a compelling circumstances EAD after a layoff?

Potentially. For an initial category (c)(35) application, the principal applicant must have an approved EB-1, EB-2 or EB-3 Form I-140, must not have filed Form I-485, must satisfy the qualifying status requirement at filing, must lack an available immigrant visa based on the priority date, and must establish compelling circumstances to USCIS's satisfaction. Employment authorization under this provision is unavailable to a person convicted of any felony or two or more misdemeanors.

Can a compelling circumstances EAD affect my ability to adjust status later?

Yes. USCIS states that a person with a valid compelling circumstances EAD is in a period of authorized stay and does not accrue unlawful presence solely during that period, but generally would not be eligible to file Form I-485 merely on that basis when the priority date becomes current. Consular immigrant visa processing may be required unless another lawful basis establishes adjustment eligibility.

Does my former H-1B employer have to pay for return transportation after a layoff?

If the employer dismisses the H-1B worker before the end of the authorized period of admission, the employer is liable for the reasonable costs of return transportation to the worker's last place of foreign residence. The regulation treats voluntary termination differently and does not classify it as dismissal for this rule.

Can I leave the United States and return to use the rest of the 60 days?

No. USCIS states that departure ends the grace period. A later return requires a separate valid basis for admission.

Guidance on related U.S. immigration categories

Compare eligibility criteria, filing procedures, documentation requirements, and practical considerations for U.S. immigration categories relevant to this topic.

Vitaliy Malyuk

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