Can I Stay in the U.S. While My B-2 Change of Status Is Pending After My H-1B Layoff?
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed January 1, 2026
Legal Inquiry
Consumer Legal Issue
I was laid off while my H-1B extension was pending, and my I-94 had expired. I already filed a change of status to B-2, but my company is going to withdraw my petition. Can I stay in the U.S. while my B-2 change of status is pending?
Attorney Answer
This depends heavily on exact dates, so treat it as urgent and get an immigration attorney involved this week rather than waiting.
When an H-1B employee's job ends, federal regulations generally provide a discretionary grace period, up to 60 days or until the end of the authorized stay, whichever is shorter, under 8 CFR 214.1(l)(2), during which the person can seek new employment, change status, or otherwise wind down their stay. Separately, filing a timely change of status (COS) application, like your B-2 request, generally allows someone to remain in the United States while it is pending, but USCIS typically requires that the applicant was in a lawful period of authorized stay at the moment the COS was filed.
That is the key question in your situation. Was your I-94 expiration covered by an authorized extension of stay, for example through the rule that can extend work authorization while a timely-filed H-1B extension is pending, or by the 60-day grace period, at the moment you filed the B-2 request? If the B-2 COS was filed while you were still within an authorized period, it generally remains valid and pending even though your employer is now withdrawing the H-1B petition, since that is a separate filing. If it was filed after your authorized stay had already lapsed, USCIS can deny it for being filed while out of status, and unlawful presence may already be accruing under INA 212(a)(9)(B), which can trigger a three or ten year bar on future admission.
What to do immediately
1. Gather the exact dates: I-94 expiration, layoff date, H-1B extension filing date, and B-2 COS filing date. 2. Do not leave the country until an immigration attorney has reviewed your timeline, since departing can affect a pending COS application. 3. Ask your former employer for written confirmation of when they will withdraw the petition, since timing affects your options. 4. Consult an immigration attorney this week. Every day matters when unlawful presence may be accruing.
Because the outcome turns entirely on specific dates and how USCIS handles your filings, this needs individual review by an immigration attorney rather than general guidance.
This is general legal information, not legal advice. A local immigration lawyer can advise you on your specific situation.
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Federal Immigration Resources
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Frequently Asked Questions
What is the H-1B 60-day grace period?
It is a discretionary period, generally up to 60 days or until the end of the authorized stay, whichever is shorter, that federal regulations allow after an H-1B job ends. During that time a person can seek new employment, change status, or prepare to depart.
Does filing a change of status application let someone stay in the U.S. while it's pending?
Generally yes, if it was filed while the applicant was still in a period of authorized stay. If it was filed after status had already lapsed, USCIS can deny it, and the person may be considered out of status while it remains pending.
What is unlawful presence and why does it matter?
Unlawful presence is time spent in the U.S. without valid authorized status, and accumulating enough of it can trigger a three or ten year bar on returning after departure under federal law. Because the bar depends on exact dates, anyone unsure of their status should get legal advice before time adds up.
