I am on an H-1B Visa. Have Just Been Laid Off. What about the 60-Day Rule?

For persons in the United States on H-1B status who have recently been laid off or are concerned about their future employment, this set of Questions and Answers addresses these issues. Please note, however, that this is general information and is not intended to be regarded as legal advice. Each situation can be varied and complicated, and the particular facts should be reviewed in light of the applicable law and practical concerns specific to the individual.

If I am in H-1B status and am laid off, am I considered to be out of status?

When H-1B employment ends, the H-1B employee is immediately out of status. The employer must file a withdrawal of the H-1B employment petition with USCIS. Filing the withdrawal protects the employer and puts USCIS on notice that the employee is out of status. A new H-1B employer’s petition will not be subject to the H-1B cap.

Although out of status, you remain in a period of authorized stay in the US until the expiration of your I-94 admission or approval. Additionally, AC-21 regulations provide a 60-day grace period within the I-94 validity period during which USCIS, in its discretion, may consider you to continue to be in status.  You may consider a change to another non-immigrant status if you file before you are laid off or within a 60-day grace period.

The H1B holder who remains in the US after the 60-day grace period has until the end of their I-94 period of authorized stay to not accrue unlawful presence and may begin H1B employment as the beneficiary of an H1B change of employer petition. Generally, these petitions may be approved for an extension of H-1 B status at USCIS’s discretion.

Generally, these petitions may be approved for US consular processing and, as no unlawful presence accrued, may be issued H1B visas at the US consulate, or, if in possession of a valid H1B visa, may depart and re-enter the US to return to H1B status. The recent Presidential Proclamation, valid September 21, 2025 to September 21, 2026, complicates this by imposing a $100,000 fee requirement for H-1B petitions filed for beneficiaries outside the United States or approved for consular processing. A limited exemption exists at the sole discretion of the Secretary of Homeland Security; it is not automatic and carries a high threshold. H-1B beneficiaries anticipating consular processing should consult with experienced immigration counsel regarding the current requirements before departing the United States.

H-1B Portability Provisions of INA § 214(n), AC21 § 105 provide that should a new H-1B employer be found within I-94 validity, the new employer may file an H-1B change of employer petition on your behalf. The H-1B beneficiary with a change of employer petition filed within their I-94 validity may begin employment with the new employer upon USCIS receipt of the new employer’s H-1B change of employer petition.

It is in USCIS’s discretion to approve the new employer’s petition and extend your stay in the US without requiring you to leave the US. The I-140 Final Rule memorialized USCIS’s practice of approving H-1B change-of-employer petitions and extending H-1B stays in the US for petitions filed within 60 days of the last pay stub, where the pay stub serves as evidence of status.

The 60-Day Rule — 8 CFR § 214.1(l)(2) Period of Stay

The I-140 Final Rule, effective February 17, 2017, provides that an alien admitted or otherwise provided status in H-1B classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely based on a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten these 60 days at its discretion.

Some attorneys distinguish between an employer lay-off and employee termination. We do not see this distinction in the final rule and consider the reference to “cessation” of employment to cover either circumstance. The 60-day grace period in the final rule includes a proviso that DHS may eliminate or shorten it at its discretion. Ostensibly, this might occur when adjudicating a subsequent petition.

The 60-day grace period memorialized what had been an inconsistently applied, unspoken policy of the Immigration Service when persons are laid off. The policy provides that a person who is laid off, finds another job, and has a new H-1B petition filed within 60 days of the layoff will not be considered out of status. However, the person may still be immediately removed from status if a new H-1B employer fails to file an H-1B petition on their behalf or fails to file a change of status application within 60 days.

Important Note: Under a February 2025 USCIS policy memorandum, USCIS expanded its authority to issue Notices to Appear (NTAs) in removal proceedings when H-1B petitions are denied or revoked. AILA has reported an increase in NTAs issued even when an employer withdraws an H-1B petition during the 60-day grace period, with a timely change-of-employer petition already filed. If you receive an NTA, you should consult with an immigration attorney immediately. Immigration judges have frequently dismissed such NTAs where a timely, non-frivolous change-of-employer petition has been filed under AC21 portability. Nonetheless, this development underscores the importance of acting promptly after a lay-off and ensuring that a new employer files a change-of-employer petition as quickly as possible.

I have heard that there is a “grace period.” Is that not true?

Under the I-140 Final Rule, there are three grace periods: (1) 10 days before the validity period begins; (2) 10 days after the validity period ends; and (3) 60 days after cessation of employment within the validity of the most recent I-94.

Depending on whom you talk to or which websites you read, grace periods of 10 to 90 days were often cited before codification. In accordance with the I-140 Final Rule, most current references correctly cite the 60-day grace period. It is important to note that this 60-day grace period is limited to the validity of the most recent I-94. It is also important to note that, unless otherwise authorized under 8 CFR 274a.12, an H-1B holder may not work during the grace period. Unauthorized employment will void any grace period and/or I-94 validity and will begin the accrual of unlawful presence.

Does the H-1B employer have to notify the Immigration Service if I am laid off?

The regulations do require an H-1B employer to notify the Immigration Service upon termination of employment, although there is no penalty for failing to do so. Case law has held that H-1B employers must effect a lawful termination or be liable for back pay if USCIS has not been notified of the termination. Under most circumstances, it is prudent for the H-1B employer to notify USCIS of a termination, and most employers do.

If I am laid off, do I have to leave the United States?

This is a very complicated question to answer. Of course, the Immigration Service would like to see everyone who is laid off leave the United States. As a practical matter, however, any person who is laid off usually tries to find new employment, whether he/she is a U.S. Citizen, Permanent Resident, or in a non-immigrant employment status. Finding a new job takes time. In addition, if a person leaves the United States, it is highly unlikely they will be able to find a job or attend interviews. For that reason, most persons in non-immigrant employment status who have been laid off remain in the United States during the 60-day grace period as they seek other employment.

Depending on whom you talk to or what websites you read, one is advised to depart the U.S. at the end of the 60-day grace period. For persons in the U.S. with nonimmigrant employment classifications E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN, this may be good general advice. The 60-day rule within I-94 validity provides an extension of status for 60 days. However, the H-1B employment visa, which permits immigrant intent, may allow a person to remain in the U.S. for the entire validity of the I-94.

The 60-day rule within I-94 validity provides an extension of status. Within I-94 validity after 60 days, the laid-off person remains in a period of authorized stay in the US unless the person works without authorization. If one works without authorization, the person immediately begins to accrue unlawful presence. If the person does not work without authorization, the H-1B beneficiary will be out of status until the end of the I-94 validity period but will not accrue unlawful presence until after that period.

While 180 days of unlawful presence subject a person to a 3-year bar from returning to the US, 365 days of unlawful presence subject a person to a 10-year bar. Should the H-1B beneficiary find employment when out of status after the end of the I-94 validity and depart the US before reaching 180 days of unlawful presence, the H-1B beneficiary will not be subject to the 3-year bar. It may be granted an H-1B visa for return to the US in H-1B status for H-1B employment.

The situation differs for non-immigrant employment visas that do not permit immigrant intent—E-3, H-1B1, and TN. For those visa holders, remaining in the U.S. after the 60-day grace period may imply an immigrant intent, preventing a consular officer from issuing a new visa or a border officer from granting admission.

But what about the 180-day rule?

There are two 180-day rules. The first states that if a person in the U.S. has been out of status for more than 180 days and wishes to apply for adjustment of status, they will be ineligible and must return home to finalize their permanent residence processing. This is not an onerous penalty, since many people each year choose to complete their processing overseas even when not required to do so. In addition, the law states that an adjustment applicant cannot have been out of status for 180 days since the last entry. So, this “180-day rule” can be negated by simply traveling outside the United States, obtaining a new visa, and returning. Leaving and returning to the United States normally “cures” this 180-day penalty.

The other 180-day rule arises when a person remains beyond their authorized stay for 180 days or more. If a person remains in the United States for more than 180 days beyond their authorized stay and then leaves the United States, he/she cannot return for 3 years. (A person who remains more than one year beyond his/her authorized stay and leaves cannot return for ten years.) But the person must remain “beyond their authorized stay,” not merely be out of status. For example, if a person has H-1B status authorized until January 2027 and is laid off today, he/she will not remain beyond their period of “authorized stay” until after January 2027.

The other way that a person “remains beyond the authorized stay” is when the Immigration Service finds out that he/she is no longer in status and orders them to leave the U.S. It is only in these two situations that this second 180-day rule is applied. Therefore, theoretically, the person in this example who is laid off today has until 180 days after January 2027 to find a job without fearing the 3-year/10-year penalty. Because most employers now notify USCIS of employment termination, there is a good chance USCIS will issue a notice of revocation before the person is authorized to remain in the U.S.

Generally, persons with H-1B nonimmigrant employment visas that permit immigrant intent may remain in the U.S. for the full validity of their I-94. After the 60-day grace period, the laid-off H-1B person remains in authorized stay in the US for the duration of their I-94 validity and does not incur the possible consequences of immigrant intent. Persons in an H-1B period of authorized stay who find a new employer within the validity of their I-94, even after the 60-day grace period, may be petitioned by the new employer with an H-1B change of employer petition and may begin employment with the new employer upon USCIS receipt of that petition.

After the I-94 validity period ends, the laid-off H-1B person remains in the US outside a period of authorized stay and accrues unlawful presence, but does not incur the possible consequences of immigrant intent. Persons accruing fewer than 180 days of unlawful presence who find a new employer after the 60-day grace period and after I-94 validity may be petitioned with a new H-1B employment petition, not subject to the H-1B cap. They may begin employment upon USCIS approval through consular processing, obtaining a new H-1B visa, and being admitted in H-1B status. It may sound complex, but it is definitely possible and has been accomplished.

The exception for persons with non-immigrant employment authorization does not apply if the person works without authorization. If one works without authorization, the person immediately begins to accrue unlawful presence. If the person does not work without authorization, they will only accrue unlawful presence after the I-94’s validity period expires. She or he may accrue fewer than 180 days of unlawful presence and still return to the U.S. on nonimmigrant visas that permit immigrant intent. But 180 days of unlawful presence will subject a person to a 3-year bar from returning to the US, and after 365 days, to a 10-year bar.

What About Changing Status?

The I-140 Final Rule provides that a person admitted in H-1B status or granted an H-1B authorized period of stay under the 60-day rule described in 8 CFR § 214.1(l)(2) may apply for and be granted a change of status under 8 CFR 248.1, if otherwise eligible.

What are my alternatives?

A person in H-1B status who has been laid off has a number of alternatives:

• Leave the United States immediately – Very few people are interested in taking this option. Many H-1B visa holders have built their lives in the United States and are interested in finding other work and continuing to remain here.
• Change status – Within the 60-day grace period, a person who is laid off may file an application to change to B-2 (visitor or tourist) status. Our firm does not generally recommend this for the following reasons: (1) within I-94 validity, the person has up to 60 days to find new H-1B employment and it is generally better to remain in H-1B status for the longer validity period; (2) an employer may file a change of employer petition for a person within H-1B I-94 validity, and the person may begin employment upon USCIS receipt of the petition; (3) a person granted B-2 status cannot be the beneficiary of a change of employer petition and cannot begin H-1B employment until an H-1B change of status petition is approved; (4) to be granted B-2 status, the person must convince the Immigration Service that he/she is merely visiting, vacationing, or engaged in activities not related to business or employment—which can raise credibility concerns since most laid-off persons are actively job-searching.
• Remain in the United States and look for a job – Most people choose this alternative. Keeping in mind that the H-1B person is generally out of status after 60 days but remains in a period of authorized stay within the validity of the I-94; that a new H-1B employer may file a change of employer petition within the validity of that I-94; that the H-1B may begin employment with the new employer upon USCIS receipt of the change of employer petition; and keeping in mind the 180-day penalties discussed above—most people have an adequate amount of time to find another job and file for a new H-1B petition.

Isn’t it harder for a person to find another H-1B job under the current administration’s H-1B policies?

USCIS adjudication of H-1B specialty occupations remains rigorous under current administration policies. In September 2025, the Trump administration issued a Presidential Proclamation requiring a $100,000 filing fee for new H-1B petitions filed on behalf of beneficiaries outside the United States. Importantly, H-1B change-of-employer petitions filed under AC21 portability on behalf of workers already in the United States on H-1B status are generally not subject to this fee. In addition, effective February 27, 2026, USCIS implemented a new weighted lottery selection process designed to prioritize higher-skilled and higher-paid workers in the annual H-1B cap. Change-of-employer petitions under AC21 portability are cap-exempt and not subject to this lottery. Because the regulatory environment continues to evolve, and is subject to litigation, H-1B beneficiaries and petitioning employers should consult with experienced immigration counsel for the most current requirements.

To find a job, people have always had to promote themselves and convince potential employers that they should be hired based on their skills, expertise, and abilities. Notwithstanding the current USCIS adjudication environment, many employers continue to hire individuals with specialized knowledge gained through a specific degree required to perform the position’s specialized duties.

Many U.S. workers lack the specialized knowledge required to perform the duties of most qualifying H-1B positions. Employers are hiring H-1B employees in specialty occupations where U.S. workers with the requisite specialized knowledge are generally unavailable.

The good news for a person who has been in H-1B status is that they remain authorized to stay until the end of their H-1B I-94 validity period. During their I-94 validity period, the H-1B beneficiary is eligible to begin working for a new employer as soon as USCIS has received the new employer’s H-1B change-of-employer petition. This places them essentially on par with their U.S. employee competitors, allowing employers to choose between the best-qualified candidates—whether U.S. workers or H-1B workers.

If I find a new job, do I have to tell the Immigration Service that I was laid off?

There is no requirement that an H-1B employee must inform the Immigration Service that a previous H-1B employer laid them off. While applications must be truthful, there is no requirement that the H-1B employee’s current employment status be explained to the Immigration Service unless it is beneficial to the employee.

The Immigration Service requires recent pay stubs to verify whether the individual has maintained H-1B status or whether the 60-day rule applies when the H-1B beneficiary has been unemployed for an extended period. USCIS will generally approve the underlying H-1B petition, but often deny the H-1B extension of stay. However, we have seen H-1B extensions of stay granted even when the H-1B beneficiary has been unemployed for several months.

If the H-1B petition is approved and the extension of stay is denied, the individual must depart the United States and be admitted in H-1B status for H-1B employment. Where the individual has a valid passport and a current visa, the H-1B beneficiary may depart the US and obtain a new H-1B admission to return to approved H-1B employment. If the beneficiary’s visa has expired, they must return to their home country and apply for a new visa.

While it is frequently time-consuming and expensive to make such a trip home, many consulates have been issuing such H-1B visas, absent issues concerning the beneficiary’s qualifications or the qualifying nature of the employment. H-1B beneficiaries and petitioning employers should be prepared for heightened consular scrutiny in the current policy environment and should consult with experienced immigration counsel before undertaking consular processing.

If I am not granted a change of employers and must leave the United States, am I guaranteed the right to return?

There is no guarantee when dealing with U.S. Government agencies. However, if all of the rules are followed and no misrepresentations are made, consulates have generally been willing to issue new visas.

What if I have already filed for Permanent Residence?

A person in H-1B status who has filed for permanent residence may have some additional areas of relief available to them with employment authorization on an EAD. Under current law, a person whose I-140 has been approved (and labor certification certified, if required) and whose I-485 application for adjustment of status to lawful permanent residence has been pending for more than 180 days may “port”—that is, leave their present employer and find new employment in a same or similar position—and continue their permanent residence process.

The new employment must be the same or similar to the job for which labor certification was received or an I-140 was approved. A person laid off after 180 days may use this provision. It is not clear, however, whether a person laid off before the 180-day mark but whose case is not adjudicated until after 180 days is eligible to make use of this provision. (However, if the I-140 is denied or the employer revokes the I-140 before 180 days, the porting option will not help.)

In light of the regulations, a strong argument can be made that a person who has applied for adjustment of status and is laid off, even only a few weeks after filing, can use this “porting” provision as long as the Immigration Service takes longer than 180 days to adjudicate their application. Therefore, a person may continue processing their permanent residence as long as they have found a job that is the same or similar to the job for which they obtained their labor certification or approved I-140. This is extremely delicate and complicated, and the ramifications need to be discussed thoroughly with your attorney.

What other options may be available to me?

The options discussed above are the most common. However, numerous other options are potentially available, including:

• Apply for a change to F-1 status (student) and attend school to obtain an additional or advanced degree.
• Marry a United States Citizen – Some people are engaged to be married to U.S. Citizens when they are laid off, although they may not intend to marry immediately. A layoff may prompt them to shorten the waiting period. Note that marrying a permanent resident is a much lengthier process, taking up to 6 years before a person can obtain permanent residence. Also, marriage to a permanent resident will not, by itself, allow a person to remain lawfully in the United States during the pendency of the process.
• Start your own business – Under certain circumstances, a person can incorporate their own business, and that corporation can petition for them to obtain H-1B status. This option has several potential pitfalls, but under the right circumstances and with current employer-employee and specialty-occupation requirements in mind, it may be available.
• Become an investor – The United States has treaties with a number of countries that allow citizens of those countries to invest a substantial amount of money in the United States and remain here. Such persons are called “Treaty Investors.” There is no fixed minimum investment amount, but persons with less than $50,000.00 to invest may have difficulty qualifying.

How to Get More Information

This document answers most of the frequently asked questions that we receive in our office about lay-offs. If, after reading this, you have questions about working in the United States or any other immigration matters, you may call our South San Francisco or Santa Clara offices to arrange an appointment. There is an initial consultation fee for the first half-hour. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty as to the accuracy of the information herein. This article was last updated in April 2026.