Laid Off?
Know Your Options
A Guide for Foreign National Employees in E, H-1B, H-1B1, L, O, or TN Status
If your U.S. employer has informed you that your employment will be terminated—or you are considering resigning—being aware of your rights and responsibilities is crucial for avoiding unauthorized employment or the accrual of unlawful presence. This guide walks you through every option available to nonimmigrant workers in E, H-1B, H-1B1, L, O, or TN status, from grace periods and employer changes to adjustment of status and departure planning.
The 60-Day Grace Period
Once your employment ends—whether voluntarily or involuntarily—you enter a grace period during which you are still considered to be maintaining your nonimmigrant status. Understanding the rules of this grace period is the essential first step in protecting your immigration standing.
How the Grace Period Works
The purpose of the grace period is to give you time to either change employers, request a change of status, adjust status, or prepare for your departure from the United States. Every option discussed in this guide depends on taking action within this window.
Grace Period Rules
- The grace period starts the day after your last official day of employment.
- It ends after 60 calendar days or on the day your I-94 validity ends, whichever comes first.
- The grace period also ends if you leave the U.S., even for temporary travel.
- During the grace period, you are not allowed to work.
Spousal Work Authorization
If your spouse has a work permit (EAD) or is employment-authorized incident to status (E and L spouses), they may continue to work during the grace period. Your job loss does not automatically affect their independent work authorization.
Change of Employer in the Same Visa Category
If you find a new employer willing to sponsor you in the same visa category during your grace period, you may be able to transition without leaving the U.S. However, the rules differ significantly depending on your visa type.
Filing Requirements
All change of employer petitions must be based on a legitimate job offer and be filed timely—that is, before the end of the grace period.
H-1B Portability
If your H-1B employment ends but you find a new H-1B employer during the grace period, you may be able to start working for the new employer as soon as they file an H-1B petition (with a new LCA—Labor Condition Application) requesting to amend or extend your H-1B status. You do not have to wait until the petition is approved and can start working immediately upon receipt.
This is possible under the concept of "H-1B portability" and is straightforward if both your old and new employers are cap-exempt, both are subject to the cap, or if you switch from a cap-subject to a cap-exempt employer. However, things can get more complicated and require careful timing if you move from a cap-exempt to a cap-subject employer.
All Other Nonimmigrant Categories
If, during the grace period, you find a new position in your current visa category (E, H-1B1, L, O, or TN), you cannot work for the new employer until their petition for you is approved. In the meantime, while the petition is pending, you are in a "period of authorized stay." During this time, you are not allowed to work and should not travel outside the U.S.
Premium Processing Tip
If you want to shorten the wait for petition approval, you may want to pay the extra fees for government premium processing of the new petition. This can reduce processing time to as little as 15 business days.
Employer Change: H-1B vs. Other Categories
| Factor | H-1B | E, H-1B1, L, O, TN |
|---|---|---|
| Can you work upon filing? | Yes — H-1B portability allows work upon receipt of the new petition | No — you must wait for approval |
| Status while pending | Authorized to work | Period of authorized stay (no work) |
| Travel allowed while pending? | Risky — consult an attorney | No — departure may abandon the petition |
Change of Status to a Different Visa Category
If you haven't found a new employer and your grace period is nearing its end, applying for a change of status can allow you to continue your job search from within the U.S. while maintaining legal status. This should be done well before your grace period ends—ideally when you have at least two weeks remaining.
Available Change of Status Options
Option 1: Change to B Visitor Status (Form I-539)
Filing an I-539, Application to Change Nonimmigrant Status to B Visitor, allows you to remain in the U.S. legally. While visitor status prohibits you from working, you are allowed to search for new employment and meet and interview with potential employers.
However, if you do find new employment, you cannot start work until the new employer's petition and request for a change of status from B to an employment-based category is approved. This is the case even if your previous job and the new job are both in H-1B specialty occupations—after you change to B status, you no longer qualify for H-1B portability.
Option 2: New Employer Files I-129 in a Different Category
Based on your qualifications and nationality, you may be able to find a new employer willing to file an I-129 Petition for Nonimmigrant Worker in a different employment-based visa category. For example, a terminated H-1B worker may qualify to switch to O-1 status if they meet the extraordinary ability criteria.
Option 3: Change to Dependent Status of Your Spouse (Form I-539)
If your spouse is currently in L-1 or E status, changing your status to that of a dependent spouse will allow you to not only stay but also work in the U.S., since L and E spouses are employment-authorized incident to their status.
Taking on the dependent status of an O, TN, H-1B, or H-1B1 spouse will enable you to legally stay in the U.S. but not work. However, if your spouse is in H-1B status and the beneficiary of an approved I-140 immigrant petition, you may be able to apply for employment authorization.
Option 4: Change to F-1 Student Status
Changing your status to F-1 full-time student requires your acceptance into a SEVP-certified school but may help position you for future employment-based visas.
Critical Rules for All Changes of Status
Important Reminders
- Each change of status must be filed timely, before the end of your grace period.
- While your request is pending, you are in a period of authorized stay. You are not permitted to work, and leaving the U.S. will cause your change of status request to be considered abandoned.
- Paying the additional government fee for premium processing (where available) will shorten the wait.
- If the I-539 or I-129 is denied, you are no longer in status and immediately start accruing unlawful presence.
Adjustment of Status, Reduced Hours & Other Options
Beyond changing employers or visa categories, there are additional pathways that may be available depending on your qualifications, your employer's plans, and your immigration history.
Adjustment of Status (Green Card)
You may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status (Green Card) application in one of the following immigrant categories:
- EB-1A Extraordinary Ability
- EB-2 National Interest Waiver
- EB-5 Immigrant Investor
Reduced Hours Instead of Termination
Should your employer decide to hold off on your termination and instead cut your hours to a part-time position, they must file an amended petition. If you are an H-1B worker, you must still be paid the prevailing wage for your part-time work.
Compelling Circumstances Employment Authorization
If you are the beneficiary of an approved I-140 Immigrant Petition and your E-3, H-1B, H-1B1, O-1, or L-1 employment is terminated before your priority date becomes current, you may be eligible to apply for employment authorization under compelling circumstances. This will allow you to work in the U.S. and keep you from accruing unlawful presence.
What Qualifies as Compelling Circumstances?
Compelling circumstances may exist if you or a dependent face serious illness, disability, or other hardship. This is a narrow category, and eligibility should be evaluated carefully with an immigration attorney.
Departing the United States
If none of the options above are viable, or if you simply choose to leave, you must depart the U.S. before the end of your grace period to avoid serious immigration consequences in the future.
Departure Requirements and Employer Obligations
Should you decide to leave the U.S. rather than finding a new employer or adjusting or changing your status, you must do so before the end of your grace period to avoid accruing unlawful presence and other serious immigration consequences.
Transportation Costs for H-1B and O Workers
If you are an H-1B or O worker and your employment was terminated against your wishes, your H-1B employer or the O employer/petitioner must pay for the reasonable costs of transportation to your last place of foreign residence. This is a legal obligation on the employer, not the employee.
Summary of All Options
Your Options at a Glance
| Option | Key Requirement | Can You Work? |
|---|---|---|
| Change of employer (same category) | Legitimate job offer; file before grace period ends | H-1B: Yes, upon filing. Others: No, until approved. |
| Change to B visitor status | File I-539 before grace period ends | No |
| New employer, different visa category | Employer files I-129 before grace period ends | No, until approved |
| Change to dependent of spouse | Spouse in valid nonimmigrant status | L/E dependents: Yes. Others: Generally no. |
| Change to F-1 student | Acceptance into SEVP-certified school | No (limited exceptions) |
| Adjustment of status (Green Card) | Qualify for EB-1A, EB-2 NIW, or EB-5 | Yes, with EAD after filing |
| Compelling circumstances EAD | Approved I-140; compelling hardship | Yes, if approved |
| Depart the U.S. | Leave before grace period ends | N/A |
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