As of October 21, 2026, your H-1B layoff options all run on one clock: up to 60 consecutive days after your job ends, or less if your authorized stay ends first. During that window you are not treated as having failed to maintain status just because the job ended (8 CFR 214.1(l)(2)). Before the window closes you need one of four things to happen: a new employer files an H-1B petition, you file to change or adjust status, you apply for a compelling circumstances work permit, or you leave the United States (USCIS, Options for Nonimmigrant Workers Following Termination of Employment (archived)).
That guidance page is now in USCIS's archive and marked "out of date," though USCIS says some of its content may still be useful (USCIS, archived termination guidance). This guide walks through the first 60 days in order. It does not cover the B-2 visitor fallback in depth.
- 8 CFR 214.1(l)(2) gives laid-off H-1B workers up to 60 consecutive days, or until the end of the authorized validity period if shorter, once per validity period.
- The grace period is discretionary: DHS may shorten or eliminate it, and USCIS decides whether it applies when it adjudicates your next filing.
- Under 8 CFR 214.2(h)(2)(i)(H), an eligible H-1B worker can start a new H-1B job when a nonfrivolous petition is filed, or on the requested start date if later.
- USCIS records a filing on the date it is actually received, not the date it is mailed (8 CFR 103.2(a)(7)(i)).
- Leaving the United States ends the grace period, according to USCIS's archived January 2025 guidance.
- An I-140 withdrawn 180 days or more after approval stays approved unless revoked on other grounds (8 CFR 205.1(a)(3)(iii)(C)).
- A DHS proposal to remove the grace period (91 FR 57807) is open for comment until November 10, 2026 and is not yet in force.
How long do you have after an H-1B layoff?
The rule is in 8 CFR 214.1(l)(2):
"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 this 60-day period as a matter of discretion." 8 CFR 214.1(l)(2)
Three limits follow from that text. First, the period can be shorter than 60 days if your authorized stay ends sooner (8 CFR 214.1(l)(2)). Second, you get it once per petition validity period; USCIS's example is that a worker terminated by Employer A, then approved for Employer B with a new validity period, may get another grace period if terminated again (USCIS, archived termination guidance). Third, it is discretionary, and you do not apply for it in advance. USCIS says it decides whether the grace period applies when it adjudicates your next extension, change of status, adjustment or compelling circumstances EAD filing, and that filers should ask for it in a cover letter (USCIS, archived termination guidance).
You cannot work during the grace period unless you have separate work authorization (8 CFR 214.1(l)(2)). Your H-4 spouse and children keep their status during the same period, because the rule covers the worker "and his or her dependents" (8 CFR 214.1(l)(2)). A spouse's EAD stays valid during the grace period, according to USCIS's archived guidance (USCIS, archived termination guidance).
The rule is under threat but unchanged. On September 11, 2026, DHS proposed removing 8 CFR 214.1(l)(2) entirely, and comments close on November 10, 2026 (Federal Register, 91 FR 57807). It is a proposal only; our explainer on the grace period proposal covers what would change.
When does the 60-day clock start, and does severance extend it?
USCIS's archived guidance answers the start date directly:
"The maximum 60-day grace period starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid." USCIS, Options for Nonimmigrant Workers Following Termination of Employment (archived; last updated 01/24/2025)
Neither the regulation nor that guidance mentions severance (8 CFR 214.1(l)(2); USCIS, archived termination guidance). On the employer side, Labor Department rules say wages need not be paid after "a bona fide termination of the employment relationship," and tie that to the employer notifying DHS so the petition is canceled (20 CFR 655.731(c)(7)(ii)). Once the employer tells USCIS you are no longer employed, the H-1B approval is "immediately and automatically revoked" (8 CFR 214.2(h)(11)(ii)).
The practical point: your end date is a legal fact you need in writing. Staying on payroll as an employee through a notice period is not the same situation as receiving a lump sum after your last day, and only your attorney can tell you which date USCIS is likely to use for your facts. If you were abroad when you were terminated with no notice period, USCIS says the grace period does not apply at all (USCIS, archived termination guidance).
Why might your I-94 end before the 60 days do?
Your H-1B status runs to the date on your I-94. In explaining denied extensions, USCIS's archived H-1B FAQ equates the expiration date of your H-1B status with "your I-94 expiration date" (USCIS, FAQs for Individuals in H-1B Nonimmigrant Status (archived)). If that date is three weeks after your layoff, you have three weeks, not 60 days (8 CFR 214.1(l)(2)).
You can print your I-94 from CBP's website using "Get Most Recent I-94," and it is valid until its Admit Until Date (CBP, Arrival/Departure Forms: I-94). If you have a Form I-797A approval notice, check its date too: USCIS describes the I-797A as "issued to an applicant as a replacement Form I-94" (USCIS, Form I-797: Types and Functions). If the two dates differ, have your attorney confirm which record controls before you count days.
What should you do in the first week?
Most of the first week is gathering facts and paper, so that a new employer's attorney can file quickly.
- Get your last day of employment and last paid day in writing, and keep your separation agreement.
- Download your most recent I-94 and find every I-797 approval notice (CBP, I-94).
- Keep recent paystubs; the regulations list paystubs, W-2 forms and tax returns as evidence that a worker maintained status (8 CFR 214.1(c)(6)).
- Ask about return transportation. An employer that dismisses you before the end of your authorized admission is liable for "the reasonable costs of return transportation" abroad (8 CFR 214.2(h)(4)(iii)(E)).
- Find your I-140 receipt or approval notice and its approval date, if you have one.
- Stay in the United States. The grace period "ends upon any departure" (USCIS, archived termination guidance).
- Put your day-60 date, and your I-94 date if earlier, on a calendar.
Can you start a new H-1B job as soon as the petition is filed?
Yes, if you are eligible. Under H-1B portability, an eligible worker "is authorized to start concurrent or new employment" on the filing of a nonfrivolous H-1B petition, "or as of the requested start date, whichever is later" (8 CFR 214.2(h)(2)(i)(H)). You must have been lawfully admitted in H-1B status, the petition must be filed before your authorized stay expires, and you must not have worked without authorization since your last admission (8 CFR 214.2(h)(2)(i)(H)(1)). The same rule is in the statute at INA 214(n) (8 U.S.C. 1184(n)).
"Filed" means received. USCIS records the receipt date "as of the actual date of receipt at the location designated for filing," and a rejected filing keeps no filing date (8 CFR 103.2(a)(7)). A petition posted on day 59 that arrives on day 62 misses the window. If the new petition is denied, the work authorization it gave you stops (8 U.S.C. 1184(n)(1)).
If you were counted against the H-1B cap in the past six years, you generally do not need a new lottery selection. The statute says a worker already counted against the cap within the previous six years "shall not again be counted" unless eligible for a full new six years (8 U.S.C. 1184(g)(7)). Two newer factors can affect a new employer's filing. Executive Order 14431, signed September 18, 2026, directs the Secretaries of State, Labor and Homeland Security to take into account whether a sponsor "directly or indirectly engaged in layoffs within the previous year or plans future layoffs" affecting similarly situated US workers (Executive Order 14431, 91 FR 60501). And the $100,000 H-1B payment is also unsettled: Proclamation 11069, signed the same day, extends that restriction until September 21, 2027 (Proclamation 11069, 91 FR 60497). USCIS says a June 8, 2026 court order vacated agency guidance implementing the payment for certain H-1B petitions, that the First Circuit denied the government's motion to stay that order on July 24, 2026, and that DHS will comply while it considers next steps (USCIS, H-1B FAQ). The new employer's attorney should address both before filing.
What are your H-1B layoff options if a new H-1B job does not come through in time?
You have four other routes, each with its own catch.
Change of status. You may apply to change status during the grace period if otherwise eligible (8 CFR 214.1(l)(3)). If your spouse holds H-1B status, H-4 is available to the spouse of an H nonimmigrant, though H-4 does not carry work authorization by itself (8 CFR 214.2(h)(9)(iv)). Others look at F-1 student status or B-1 or B-2 visitor status, which the archived guidance also discusses (USCIS, archived termination guidance). A timely, nonfrivolous change of status application stops unlawful presence from accruing while it is pending, as long as you maintained status before filing and have not worked without authorization, but if it is denied, unlawful presence starts the day after the denial (USCIS, archived termination guidance). A pending application does not give you lawful status, though you may be in an authorized period of stay, and USCIS says that if you depart while a change of status request is pending, "we will consider the change of status request abandoned" (USCIS, archived H-1B FAQ).
A different work visa. Portability applies only to new H-1B petitions; USCIS says a worker filing for employment in another classification "must wait to begin employment until the new petition is approved" (USCIS, archived termination guidance). That matters if you are weighing an O-1; our comparison of O-1 and H-1B covers the trade-offs.
Compelling circumstances EAD. If you are the principal beneficiary of an approved EB-1, EB-2 or EB-3 petition and your priority date is not current, you may apply for a work permit while in H-1B status, which includes the grace period (8 CFR 204.5(p)(1)). USCIS must also find, in its discretion, compelling circumstances that justify it (8 CFR 204.5(p)(1)(iii)). Once you work on that EAD you are no longer maintaining nonimmigrant status, though you are generally in a period of authorized stay (USCIS, archived termination guidance). The catch: if your priority date later becomes current while you are working on it, USCIS says you generally would not be eligible to file Form I-485 and would process your green card abroad instead (USCIS, archived termination guidance).
Adjustment of status. If you are eligible to adjust status, filing Form I-485 within the grace period is one of the listed options. USCIS notes that some workers can file a self-petition, such as EB-1 extraordinary ability, together with the I-485, and that applicants with a pending I-485 are generally in a period of authorized stay and can get an EAD (USCIS, archived termination guidance).
If none of these happens, you and your family may need to leave within 60 days or by the end of your validity period, whichever is shorter (USCIS, archived H-1B FAQ). Leaving does not end your H-1B career: from abroad, USCIS says H-1B holders "may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status" (USCIS, archived termination guidance).
What happens to your green card case after a layoff?
It depends on how far along you are.
If your I-140 was approved at least 180 days before your former employer withdraws it, it "remains approved unless its approval is revoked on other grounds" (8 CFR 205.1(a)(3)(iii)(C)). The job offer is still gone, so you need a new petition for the green card itself (8 CFR 205.1(a)(3)(iii)(C)). An approved EB-1, EB-2 or EB-3 petition generally gives you its priority date for any later petition in those categories, unless it is revoked for fraud, misrepresentation or certain other reasons (8 CFR 204.5(e)). Our guide to priority date retention explains why that early date keeps mattering.
If your I-485 has been pending 180 days or more and your I-140 is approved, you may be able to move to a new job in the same or a similar occupational classification under INA 204(j) (8 CFR 245.25(a)). See our explainer on AC21 job portability for the conditions.
What this means for you
Treat the first 60 days as three phases. In week one, pin down your dates and documents and work out which date ends your stay. In weeks two to six, push hardest on a new H-1B filing, because portability lets you work again on filing rather than waiting for an approval (8 CFR 214.2(h)(2)(i)(H)). By around day 45, if no offer is near, decide on a backstop with your attorney: a change of status, a compelling circumstances EAD, adjustment, or a planned departure. Whatever you file has to be received by USCIS before your last day, not just sent (8 CFR 103.2(a)(7)).
A layoff is also a reason to look again at green card routes that do not depend on one employer. Our overview of H-1B to green card routes sets them side by side.
Where to start
If a layoff has you rethinking your plan, our free evaluation shows how your profile maps to EB-1A, EB-2 NIW and O-1 criteria, and Frank, our AI assistant, finds real opportunities for the criteria you are missing. Petitions are reviewed and filed by our partner law firm, Lai & Turner.
Sources
All checked October 21, 2026.
- 8 CFR 214.1, eCFR (current). The 60-day grace period, change of status during it, and evidence of maintained status.
- 8 CFR 214.2, eCFR (current). H-1B portability, return transportation, automatic revocation and H-4 dependents.
- 8 CFR 103.2, eCFR (current). Receipt date is the actual date of receipt.
- 8 CFR 204.5, eCFR (current). Priority date retention and compelling circumstances EAD eligibility.
- 8 CFR 205.1, eCFR (current). I-140 withdrawal after 180 days.
- 8 CFR 245.25, eCFR (current). INA 204(j) portability for pending I-485s.
- 20 CFR 655.731, eCFR (current). Wage obligation ends on a bona fide termination.
- 8 U.S.C. 1184, govinfo (2024 edition). INA 214(g)(7) cap counting and 214(n) portability.
- USCIS, Options for Nonimmigrant Workers Following Termination of Employment (archived) (last updated 01/24/2025). Grace period start, travel, options, unlawful presence and departure.
- USCIS, FAQs for Individuals in H-1B Nonimmigrant Status (archived) (last updated 12/23/2025). I-94 date as the end of status; authorized stay while a change of status is pending.
- USCIS, Form I-797: Types and Functions (last updated 01/24/2025). I-797A as a replacement I-94.
- CBP, Arrival/Departure Forms: I-94 (current). Get Most Recent I-94 and the Admit Until Date.
- Eliminating the Discretionary 60-Day Grace Period, 91 FR 57807 (September 11, 2026). Proposal to remove the grace period; comments close November 10, 2026.
- Executive Order 14431, 91 FR 60501 (signed September 18, 2026). Sponsor layoffs as a factor in H-1B filings.
- Proclamation 11069, Restriction on Entry of Certain Nonimmigrant Workers, 91 FR 60497 (signed September 18, 2026). Extends the $100,000 payment restriction to September 21, 2027.
- USCIS, H-1B FAQ (last updated 07/28/2026). Court order vacating $100,000 payment guidance; First Circuit stay denial; DHS compliance.
Frequently asked questions
Does severance pay extend the H-1B 60-day grace period?
Neither 8 CFR 214.1(l)(2) nor USCIS's archived January 2025 guidance mentions severance. That guidance says the 60 days start the day after termination of employment, which is typically based on the last day for which a salary or wage is paid. Staying on payroll as an employee through a notice period is a different situation from a lump sum paid after your last day, so have your attorney read your separation agreement before you count days.
Can I start working for a new employer as soon as my H-1B transfer is filed?
Usually yes. Under 8 CFR 214.2(h)(2)(i)(H), an eligible H-1B worker may start new employment when a nonfrivolous H-1B petition is filed, or on the requested start date if that is later. The petition must be filed before your authorized stay expires, and you must not have worked without authorization. Filing means USCIS actually received it. If the petition is later denied, that work authorization ends.
What if my I-94 expires before the 60 days are up?
Then your grace period is shorter than 60 days. 8 CFR 214.1(l)(2) gives up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter. USCIS's archived H-1B FAQ equates the end of your H-1B status with your I-94 expiration date. Check your most recent I-94 on the CBP website and the date on any Form I-797A approval notice, which serves as a replacement I-94. If the two dates differ, ask your attorney which record controls before you count days.
Can I travel outside the United States during the H-1B grace period?
You can, but it ends the grace period. USCIS's archived January 2025 guidance says the grace period ends upon any departure, and you must seek another status that permits reentry. It also says H-1B holders abroad may seek US employment and readmission for any remaining period of their H-1B status. Leaving while a change of status is pending is treated as abandoning that request.
Does a layoff cancel my approved I-140?
Not if it was approved at least 180 days before your employer withdraws it. Under 8 CFR 205.1(a)(3)(iii)(C), a petition withdrawn 180 days or more after approval stays approved unless revoked on other grounds. The job offer is gone, so you need a new petition to get the green card, but you generally keep the priority date for a later EB-1, EB-2 or EB-3 petition under 8 CFR 204.5(e).
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
