This is no longer just a rumor. According to Bloomberg Law, a Department of Homeland Security proposal to eliminate the 60-day grace period for H-1B workers has already cleared a key White House review, a step that typically signals formal publication is coming soon.
If this rule takes effect, it would place H-1B professionals in a precarious position: the practical consequence would be the immediate accrual of unlawful presence the moment employment ends, exposing them to the risk of removal proceedings. Indian professionals stand to be hit hardest of all, and not just because of the grace period itself. Add the existing green card backlog into the mix, and the margin for error shrinks even further for a population that already waits longer than anyone else in the system.
That's exactly why acting proactively, and planning ahead of this scenario, is so important. So what options exist, and how do you go about analyzing them?
Is the U.S. Where You Want to Build Your Professional and Personal Life?
The United States is, without question, a diverse country with opportunities unlike anywhere else. But uprooting yourself, cultural differences, and even the licensing requirements tied to practicing a profession trained abroad, can all carry real weight. Before we talk about any immigration remedy, we believe it's important to answer that question for yourself first, weighing everything in the balance.
O-1A: Maybe Your First Way Out?
Holding an H-1B doesn't automatically make you eligible for an O-1A. That said, if your career has naturally progressed, this route can be an excellent option. By demonstrating extraordinary ability to the government through awards, contributions to the field, published research, judging the work of others, high salary, media coverage, and more, you open a path that, for now, isn't tied to this wave of policy changes and can be renewed indefinitely.
Foresight and organic, natural preparation are everything here. Keep in mind that the achievements used to satisfy the different criteria can't be purely academic, nor limited to what you accomplished while working for an employer. Sponsorship from a U.S. company, or an agent, is also required. This route isn't for everyone, but given the level of expertise H-1B professionals typically bring to the table, it's worth reviewing and planning for as a card up your sleeve.
And with an approved O-1, you also have a strong starting point for an EB-1, which, over roughly four years, can turn into a green card.
EB-2 NIW
An H-1B professional very likely already has the foundation for an EB-2: academic preparation equivalent to a U.S. bachelor's or master's degree. Given the nature of the industries and sectors where H-1B holders tend to work, demonstrating impact and building a national interest argument is often entirely plausible.
Sounds good so far, right? There's one detail that matters a great deal. Even though an EB-2 NIW may be completely viable on its merits, individuals born in India are subject to backlogs in the immigration system that make it unrealistic to obtain a green card quickly, regardless of how strong the case is.
Even so, there are four important points worth reviewing:
- Extended status beyond the six-year limit. A person in H-1B status with an approved I-140 (EB-2) can extend their status beyond the standard six-year cap. You'd still be tied to a U.S. employer, but acting proactively means having a plan B in place ahead of a potential layoff.
- Securing a priority date matters. If the case is approved, locking in your place in line under EB-2 now puts you in a better position to pivot to EB-1 later, if and when the circumstances support it.
- Marriage can change the picture. If the person born in India is married to someone born in a different country, they would not be subject to the long EB-2 backlogs and could potentially obtain a green card in a relatively short time.
- Country of birth, not citizenship, is what counts. When it comes to visa availability, the government looks at country of birth, not country of citizenship. An Indian citizen born in the United Arab Emirates, for example, would receive different, more favorable treatment than someone born in India, even though both hold the same citizenship.
Changing to Another Nonimmigrant Category
Without proactive immigration planning, and facing the reality of a potential layoff, one possible remedy (although a riskier one) is a change of status. For example, moving from H-1B to a tourist or student category, buying time to properly evaluate your options given the circumstances. The main risk here is that this is one of the areas where the government exercises the most discretion. That said, extraordinary circumstances surrounding the change are exactly the kind of thing that discretionary analysis takes into account.
The Bottom Line
The regulation itself is still moving through the process, but the record you'd need to rely on any of these options isn't something you can build overnight. Awards, published work, judging invitations, a national interest argument, none of that comes together in the 60 days you might not even have anymore. Every individual, every case, and every personal, family, and professional circumstance is different. At CALAM, we're here to help you get ahead of this timeline, build that record now while you still have one, and align every option available to you before the choice is made for you.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Every immigration case is unique, and you should consult a licensed immigration attorney to evaluate your specific situation before making any decisions.
