USCIS processing times for H1B visa petitions can sometimes get very long and some H1B holders may end up in situations, where they hit the 240 days mark and not sure, if they can work or not. As the H1B premium Processing is suspended until Feb 2019, many H1B holders are in similar situations with the delays in processing times. Let’s look at the USCIS’s 240 Day rule in H1B visa’s context and share details on various scenarios regarding work options, denials, etc.
What is H1B Extension 240 Days USCIS Rule ? What’s Employers Guidance from USCIS?
As per USCIS employee handbook, Employers or H1B Sponsoring Companies can file extensions for their employees on H1B Visa Status using I-129 form before their status expires. After filing H1B extensions, while USCIS is processing these petitions, the employees with pending H1B visa extension petitions are authorized to work for up to 240 days or until USCIS Denies H1B Extension petitions, whichever comes early. What it means is that, if USCIS denies your H1B extension petition earlier than 240 days mark, from the day your previous H1B petition or I-94 expired, then you need to stop working immediately and leave the country. Alternatively, if your H1B petition decision is pending with USCIS for 240 days, from the date of expiry of your previous petition or I-94, you can continue to work for up to 240 days. Below is the official reference text from employers’ handbook on USCIS website. It does not cover explicitly the “240 days from the date of expiry of authorized stay”. To get this clarified, let us look at the official regulation now.
H1B Extension Pending for more than 240 days – When does it start ? Official Regulation?
The official regulation for 240 day rule is published in federal register as 8 CFR 274a.12(b)(20) and the text says pretty much the same as above, but it explicitly highlights the when the 240 days start from. As you can see in below screenshot of the regulation, it says that a H1B holder with pending extension petition can work for up to 240 days from the date of expiration of authorized status, which is basically the expiration date of your previous H1B petition or I-94.
Also, if your extension petition is denied before 240 days, then your work authorization ends immediately upon notification of the decision and you need to stop working and leave the country. See below screenshot from the federal register : yellow highlighted one indicates working rule, green highlighted one indicates the text for start date for 240 days, red highlighted one indicates the denial rule.
Conditions that allow H1B holders with Extensions pending to work for 240 Days ?
Below are the required conditions for H1B holders to take advantage of 240 day rule :
- H1B holder has to be in valid status, while filing extension petition.
- Employer/ H1B Sponsor has to file H1B Extension petition on time, before the expiration of the current status…Also, USCIS has to receive the same on time before expiration of status.
- H1B holder continues to work for the same H1B Employer, who has filed extension.
H1B Extension Pending beyond or after 240 days – Can you Stay in USA?
If your H1B visa extension petition is pending with USCIS for more than 240 days, you cannot work as per regulation after 240 days from expiration of your I-94, but you can stay in the country, USA, waiting for decision until USCIS makes a decision on your petition and your stay after 240-day mark is considered as authorized stay.
H1B Extension Denied After 240 Days ? Am I in Unlawful Presence ?
If your H1B petition gets denied after 240 days, essentially your period of authorized stay ends on the day your denial decision was done and you are notified by USCIS on the same. You are essentially out of status and will accrue unlawful presence from the day of your denial. Your unlawful presence does not date back to your entire stay and only starts from the day of your denial decision from USCIS and will accrue from that day. So, you need to depart US immediately after your denial decision is notified to you.
Does 240 Day Rule Apply to H1B Transfer ? Can you work beyond 240 days ?
No, the 240 day rule does not apply to H1B Transfers. It is only applicable to H1B extensions filed with same employer. If your H1B transfer petition was filed on time (before expiration of I-94) and is pending beyond 240 days, you can continue to work even after 240 days, as the 240 days H1B rule is not applicable in this context. You are considered to be in period of authorized stay, meaning you are not accruing any unlawful presence. If your H1B gets denied anytime after 240 days or before 240 days, your work authorization ends on that day and you need to stop working and leave the country.
What can you do to avoid 240 Day Rule complications ? Apply early, Submit USCIS Inquiries
- It is recommended to file for H1B Extensions much ahead of time. You can apply for H1B visa extensions 6 months before expiration, so plan ahead and apply.
- Employers can submit an inquiry with USCIS, if their petition is pending for 210 days or more. They can call USCIS contact center and provide details of the original receipt notice and indicate that the case has been pending for over 210 days to get USCIS to work on the same. Here is the official USCIS alert for 210 days inquiry
Yes, it applies to anyone using the form I-129 such as L1
The 240 days starts from the day your authorized period of stay expires, which is nothing but end of your I-94 date or approval date on your approved petition.
In general, 240 day rule applies to pure extensions. With Amendments added as part of your extension, you maybe eligible to continue working even after 240 days. So check with your attorney.
All the visas types that can leverage 240 day rule are : H1B, H1B1, H2A, H2B, H3, L1, O1, O2, P1, P2, P3, R1, TN, A3, E1, E2, E3, G5, CW1 and I.
No, the 240 days rule does not apply for any transfer petitions filed.
Every H1B case is different and there can be complications with continuous changes in visa rules, it is recommended that you discuss with your attorney on your situation, when you are dealing with 240 day rule.
What has been your experience with 240 Day H1B rule ?