Employment-Based Immigration: What if my H-1B Extension is pending more than 240 days?

Employment-based Immigration H-1B.jpg

What is the 240 day rule in the H-1B extension process?

Summary: The 240 day rule permits an H-1B employee to remain and work in the US for up to 240 days after I-94 expiration while the H-1B extension petition is pending with USCIS.

Detailed explanation from employment-based immigration attorney:

When an H-1B extension petition is filed with the same employer, the H-1B employee is authorized to work for up to 240 days after the expiration of her current H-1B period of stay (listed on the H-1B employee’s most recent I-94 document). If 240 days pass after the expiration of the H-1B employee’s period of authorized stay and the H-1B extension petition is still pending with USCIS, the H-1B employee loses her authorization to work until the H-1B extension petition is approved. Although the H-1B employee loses her work authorization after the 240 day mark, the H-1B employee is allowed to remain in the US while her timely filed H-1B extension petition is pending with USCIS.

If you are unsure whether the 240 day rule applies to your case or need a customized H-1B extension strategy, contact our employment-based immigration lawyer.

Does the 240 day rule apply to H-1B transfer petitions?

Summary: No, the 240 day rule generally does not apply to H-1B transfer or change of employer petitions.

Detailed explanation from employment-based immigration lawyer:

The AC21 statute allows for H-1B portability, which allows an H-1B employee to commence new employment with a new H-1B employer once the new H-1B employer files an H-1B transfer petition, also called H-1B change of employer petition, with USCIS.  Employment-based immigration rules state that in order to qualify for H-1B portability, the H-1B employee must meet the following requirements:

  • The H-1B worker was lawfully admitted.
  • The new H-1B transfer petition is not frivolous.
  • The new H-1B transfer petition was filed before expiration of the current H-1B period of stay.
  • The H-1B employee was not employed without authorization before the H-1B transfer petition is filed.

The AC21 statute allows an H-1B transfer employee to commence working the moment the H-1B transfer petition is filed. If an H-1B transfer petition is pending beyond the 240 day mark, the H-1B transfer employee should be allowed to continue to work for the new H-1B employer under the rules provided in the AC21 statute.

If you are contemplating filing an H-1B transfer petition or already have an H-1B transfer petition pending with USCIS, contact our employment-based immigration lawyer for a custom-tailored H-1B transfer strategy.

What happens if 240 day limit has passed and H-1B extension petition is still pending?

Summary: The H-1B employee may remain in the US but cannot continue to work. To avoid this problem, it is often recommended to upgrade the H-1B petition to premium processing.  

Detailed explanation from employment-based immigration attorney:

If the H-1B employer filed a timely, non-frivolous request to extend H-1B status, the H-1B employee may remain in the US while USCIS adjudicates the H-1B petition. If the H-1B extension petition is still pending 240 days after expiration of the H-1B employee’s I-94 card, the H-1B employee loses her work authorization but may continue to reside in the US until the H-1B extension petition is adjudicated.

It is possible to request a premium processing service for H-1B petitions, including H-1B extension and H-1B transfer petitions. Petitions filed under premium processing are expedited by USCIS and are processed within 15 days of receipt. Effective October 1, 2018, the government filing fee for the premium processing service is $1,410 (in addition to the standard filing fees). Please note, in recent years, USCIS has routinely suspended premium processing for certain types of H-1B petitions. It is important to discuss the premium processing option with an experienced employment-based immigration lawyer who can advise whether it is a viable option in your particular case.  

If an H-1B extension petition has been pending for several months and the H-1B employee must continue working without interruption after the 240 day mark, it is often recommended to upgrade the H-1B petition to premium processing so that the H-1B extension petition is adjudicated before the 240 day deadline.

If you filed an H-1B extension petition that has been pending for several months, or if you are seeking a personalized H-1B extension strategy, contact our employment-based immigration lawyer.

Our Employment-Based Immigration Lawyer is Here to Help You

Do you need assistance preparing and filing an H-1B extension petition? Our employment-based immigration attorney can devise a custom tailored H-1B extension strategy and prepare your H-1B extension petition in compliance with all relevant employment-based immigration rules. As an experienced employment-based immigration law firm, Pandev Law has the knowledge and experience to guide you through your H-1B process.

Please complete our contact form, email admin@pandevlaw.com, or call us at 212-220-6652, to schedule a consultation with our employment-based immigration attorney.

During your consultation, our employment-based immigration lawyer will provide an honest assessment of your case, and a recommendation for your next steps.

Disclaimer: Although this article discusses general legal issues, it does not constitute legal advice. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Pandev Law, LLC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

I offer a FREE & Confidential 15 minute consultation