Laid Off in the U.S. in 2026? H-1B, O-1 and Green Card Options Every Foreign Worker Should Know
Key takeaways
H-1B and O-1 workers may have up to 60 days after a layoff, or until the I-94 expires if sooner. DHS has proposed ending this grace period, but the rule is not final.
A new employer can generally let you start work once it properly files a change-of-employer H-1B petition.
PERM is employer-specific, but an approved I-140 can protect your priority date. O-1, EB-1A and EB-2 NIW suit only people who can document strong achievements.
Count days from your last day of employment and speak with a licensed immigration attorney quickly.
Laid off and watching the clock? NAIS can help organize the documents behind an H-1B transfer, O-1 petition or Green Card filing, so you and your attorney can move quickly.
Call +1 (718) 973-9373 or email Kritagya@newyorkareaimmigrationservices.com.
Why a Layoff Is Also an Immigration Emergency
For H-1B and O-1 workers, a layoff starts a legal status clock, because your right to work (and often your Green Card process) is tied to your employer. This guide covers your immigration options after a U.S. layoff and separates current law from proposed rules.
2026 status check: On September 11, 2026, DHS published a proposed rule, “Eliminating the Discretionary 60-Day Grace Period”, covering H-1B, L-1, E, O and TN workers and dependents. It is not in effect, and the current grace period still applies. Comments close November 10, 2026; check the Federal Register for a final rule.
What Happens to H-1B Holders After a Layoff?
The 60-day grace period. Under 8 CFR 214.1(l)(2), H-1B workers and H-4 dependents are generally treated as maintaining status for up to 60 consecutive days after employment ends, or until the authorized stay ends, whichever is shorter. You must have been in valid H-1B status; the grace period is discretionary, generally applies once per validity period, and does not authorize work.
How it is counted. Count from your last day of employment, not the day you were told, then compare with your I-94 date and use the earlier. If you are paid through a notice period or get severance, ask an attorney when employment is treated as ending. Example: last day November 10, 2026 puts day 60 around January 9, 2027, but if your I-94 expires December 31, 2026, the grace period ends December 31.
Finding a new sponsor (portability). During the grace period a new employer can file a change-of-employer petition. Under H-1B portability, you may generally start work once it is properly filed, without waiting for approval, if you are in lawful status at filing and have not worked without authorization. If you were already counted under the cap, a new cap number is usually not needed, and cap-exempt employers (universities, some nonprofits) can also sponsor you.
The $100,000 payment. A 2025 proclamation, extended in September 2026 through September 21, 2027, targets H-1B workers who must enter from abroad. USCIS guidance indicates change-of-employer petitions for people already in the U.S. are generally exempt if a change of status or extension is granted; the fee may apply if the petition requests consular processing. A federal court order currently pauses collection and litigation continues. It matters most if you leave the U.S. and a new employer files from abroad.
Other options. USCIS lists several options after termination:
Change of status to another work category or to dependent status such as H-4, or to B-2 or F-1 (B-2 does not allow work).
Adjustment of status, if eligible and a visa number is available.
Compelling circumstances EAD for some workers with an approved I-140 whose priority date is not current. Case-by-case, up to one year.
If you cannot find a new employer. When the grace period ends without a timely filing, you generally must leave. Staying can cause a status violation and unlawful presence, leading to 3- or 10-year re-entry bars after departure. For H-1B and O workers dismissed early, the employer must pay reasonable return transportation to your last foreign residence, and time spent abroad may be “recaptured” toward the six-year H-1B limit.
Need to move fast on an H-1B transfer? NAIS supports H-1B petition documentation and change-of-status filings, so your new employer and its attorney have what they need before your grace period runs out.
Call +1 (718) 973-9373 or email Kritagya@newyorkareaimmigrationservices.com.
Can an O-1 Visa Be an Alternative After Losing an H-1B Job?
For some people, yes. The O-1 visa is for extraordinary ability or achievement. It has no annual cap and can be a change of status from H-1B, but the standard is high and it is not a fallback for every laid-off worker.
| O-1A | O-1B | |
|---|---|---|
| Fields | Sciences, education, business, athletics | Arts; motion picture and television |
| Standard | Sustained national or international acclaim | Distinction in the arts, or extraordinary achievement in film and TV |
Evidence (O-1A). A major internationally recognized award, or at least three of: prizes or awards; membership in associations requiring outstanding achievement; published material about you; judging others’ work; original contributions of major significance; scholarly articles; a critical role at distinguished organizations; high salary. O-1B has its own criteria. Every petition also needs a peer-group or labor-organization consultation, and meeting three criteria does not guarantee approval.
Employer, agent and timing. A U.S. employer or U.S. agent must file (an agent helps if you work for several clients). You can file during the grace period to change status from H-1B. If you are already on an O-1 and the job ends, the same grace period applies and a new employer or agent can file a new petition.
Thinking about an O-1? NAIS supports O-1A and O-1B petition drafting and evidence organization, from mapping your achievements to the criteria to preparing the exhibits.
Call +1 (718) 973-9373 or email Kritagya@newyorkareaimmigrationservices.com.
What Happens to Your Green Card Process After a Layoff?
It depends on how far your case has progressed. Individual facts can change the result.
| Stage | What a layoff usually means |
|---|---|
| Before PERM filing | No case or priority date yet; a new employer starts from the beginning. |
| PERM pending | Tied to the employer and job, so it generally cannot move. If withdrawn or denied, any priority date from the filing is lost. |
| PERM approved, I-140 not filed | Valid generally 180 days and employer-specific. If the employer will not file the I-140, a new employer generally needs a new PERM. |
| I-140 pending | Withdrawal or denial before approval generally leaves no priority date. If an I-485 has been pending 180+ days, portability may still be possible. |
| I-140 approved | Priority date generally kept if the approval stood 180+ days before withdrawal; before that, withdrawal can revoke the approval. |
| I-485 pending | INA 204(j) portability may apply if pending 180+ days and the new job is in the same or a similar occupation. |
What can carry over to a new employer:
New PERM. If your PERM was pending or unused, the new employer restarts with a prevailing wage request, recruitment and filing.
Priority date retention. An approved, unrevoked I-140 generally lets you use the same priority date for a new employer’s petition, which can save years in backlogged categories. If the employer withdraws an I-140 approved 180+ days, USCIS generally keeps the priority date and AC21 benefits unless it revokes on other grounds (USCIS Policy Manual).
AC21 portability. With an I-485 pending 180+ days, you may change jobs if the new one is in the same or similar occupational classification, documented on Supplement J. USCIS compares duties and occupational codes: “Software Engineer” to “Senior Software Engineer” often fits; an unrelated field may not. A pending I-485 also lets you hold an EAD while you search.
Alternative Green Card Pathways After Losing a Job
None is an automatic backup, and USCIS has applied closer scrutiny to some self-petition categories.
EB-1A (extraordinary ability). Self-petition, no employer or PERM. You must show sustained national or international acclaim through a major award or at least three of ten criteria. Limits: high standard; availability depends on country of birth.
EB-2 NIW (National Interest Waiver). Self-petition. You need an advanced degree or exceptional ability, plus the three-part Dhanasar test: substantial merit and national importance, you are well positioned to advance the work, and waiving the job offer benefits the U.S. USCIS updated its NIW guidance in January 2025, and general claims carry little weight. Limits: long backlogs for some countries; specific evidence required.
EB-1C (multinational managers and executives). Requires one year of qualifying employment abroad within the past three years and sponsorship by a related U.S. entity. Relevant after a layoff only if you move to such a company.
New employer sponsorship. The most common route (EB-2 or EB-3 via PERM, then I-140), but slow. DOL proposed higher prevailing wage levels on March 27, 2026, and a separate PERM modernization proposal cleared OMB review October 23, 2026 but is not yet published. Current PERM rules apply until a final rule. Check the monthly Visa Bulletin.
Unsure about PERM, I-140, EB-1A or NIW? NAIS offers PERM documentation support, I-140 preparation, and EB-1A and EB-2 NIW petition documentation, including expert opinion letters, for individuals, employers and law firms.
Call +1 (718) 973-9373 or email Kritagya@newyorkareaimmigrationservices.com.
What to Do Immediately After a Layoff
Find your I-94 date at i94.cbp.dhs.gov. It sets your outer limit.
Confirm your last day of employment and review the termination letter, including any paid notice period.
Gather documents: passport, I-797 notices, I-94, pay stubs, W-2s, LCA, offer letter, and any PERM, I-140 or I-485 receipts. Ask your employer for case copies before access ends.
Check your Green Card stage using the table above.
Start your job search now and tell recruiters you need a change-of-employer H-1B.
Evaluate backup options: O-1, self-petition, change of status or planned departure.
Consult a licensed immigration attorney quickly, and have them review any separation agreement before you sign.
What Employers Should Know
Employers keep immigration duties even while cutting jobs.
Withdraw petitions properly. For H-1B, give USCIS written notice as part of a bona fide termination. The LCA wage obligation generally continues until termination is properly completed.
Pay return transportation if an H-1B or O worker is dismissed early and chooses to leave.
Time I-140 withdrawals carefully. The 180-day line affects whether the employee keeps the priority date.
Keep records: public access file, I-9s, payroll and termination documents. PERM recruitment records are generally kept five years, and existing PERM rules require specific steps after recent layoffs in the same or a related occupation.
Plan layoffs and sponsorship together. Executive Order 14431, signed September 18, 2026, directs agencies to consider whether an H-1B sponsor has laid off, or plans to lay off, similarly situated U.S. workers. It does not bar such employers from sponsoring. DOL’s pending PERM proposal is also expected to address layoffs.
Employer or HR team managing layoffs? NAIS can support H-1B, PERM and I-140 documentation, plus I-9 verification and global mobility, while your counsel handles the legal strategy.
Call +1 (718) 973-9373 or email Kritagya@newyorkareaimmigrationservices.com.
Common Mistakes to Avoid
Treating the grace period as permission to work, or starting work (or working on B-2) before the new petition is properly filed.
Forgetting the I-94 date. It can end your grace period early.
Waiting until day 55. Employers need time to prepare a filing.
Assuming PERM or I-140 moves with you automatically. PERM generally does not.
Signing a separation agreement without review. Terms on your last day and withdrawals can affect your case.
Treating a proposed rule as law, or ignoring it. Plan for both outcomes.
Filing a weak self-petition. A thin EB-1A or NIW filing wastes time and money.
Relying on unqualified advice. Get legal advice from a licensed attorney.
How NAIS Can Support Immigration Documentation
New York Area Immigration Services (NAIS) has more than 23 years of experience in immigration documentation, supporting individuals, employers and law firms with H-1B and O-1 petition documentation, PERM and I-140 preparation, EB-1A and EB-2 NIW documentation, change of status filings, RFE response drafting and expert opinion letters, plus I-9 and E-Verify support for employers.
Important: NAIS provides immigration documentation support. We are not a law firm and do not provide legal advice or representation. We cannot promise approvals or any particular outcome. Where legal advice is needed, we work alongside your attorney of record.
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Frequently Asked Questions
1. What happens to my H-1B if I am laid off, and how long can I stay?
Your status depends on your employer, so a layoff starts a clock. Generally you have up to 60 days from your last day of employment, or until your I-94 end date if sooner, to find a new sponsor, change status or leave. A timely change-of-employer or change-of-status filing may let you stay while it is pending. The proposal to end the grace period is not in effect.
2. Can I transfer my H-1B to another employer?
Yes. A new employer files a change-of-employer petition while you are in valid status, and you may start work once it is properly filed. Workers already counted under the cap usually do not need a new cap number.
3. Can I switch from H-1B to O-1, and who qualifies?
Possibly. O-1A covers sciences, education, business and athletics; O-1B covers the arts and film or TV. You must document sustained acclaim, usually a major award or three types of evidence, plus a peer consultation, and have a U.S. employer or agent file during the grace period.
4. What happens to my PERM after a layoff?
PERM is tied to the employer and the job, so it generally cannot continue after you leave. A new employer would normally start a new PERM.
5. Can I keep my priority date or use my approved I-140?
Often yes, if the I-140 was approved and not revoked. After 180+ days of approval, an employer withdrawal generally does not cancel the priority date. It can carry to a new I-140 and may support H-1B extensions beyond six years, but it does not by itself let you work for a new employer.
6. What is the 180-day I-485 portability rule?
If your I-485 has been pending 180 days or more and your I-140 is approved or approvable, you may move to a job in the same or a similar occupation under INA 204(j), documented on Supplement J.
7. Can I apply for EB-2 NIW or EB-1A after a layoff?
You may file if you meet the legal standards, since neither needs an employer. Neither is automatic, and both need strong evidence.
8. Does an approved I-140 guarantee a Green Card, and can I continue without my old employer?
No guarantee: you still need an available visa number, an approved I-485 or consular process, and admissibility. You can sometimes continue through priority date retention, AC21 portability, a new sponsor or a self-petition, depending on your stage.
Conclusion
A layoff is stressful, but it does not always end your U.S. immigration path. Your options depend on your status, your I-94 date and how far your Green Card case has progressed. Act within your deadlines, keep your documents organized, treat proposed rules as possible changes rather than current law, and confirm your plan with a licensed immigration attorney.
Don’t wait for the grace period to run out. Contact NAIS today or book a free consultation for help organizing the documentation behind your H-1B transfer, O-1 petition, PERM, I-140, EB-1A or EB-2 NIW case.
Call +1 (718) 973-9373 or email Kritagya@newyorkareaimmigrationservices.com.
Sources and Official Resources
DHS, Eliminating the Discretionary 60-Day Grace Period (proposed rule) · 8 CFR 214.1 · USCIS, Options Following Termination of Employment · USCIS Policy Manual, Vol. 7, Part E, Ch. 5 · USCIS O-1, EB-1, EB-2 · DOL prevailing wage proposed rule, PERM · Executive Order 14431 · Visa Bulletin
NAIS is not a law firm and does not provide legal advice or representation. This article is general information as of November 5, 2026, and rules may change. Consult a licensed immigration attorney about your situation.