H1B Visa Extension 240 Day Rule Details

H1B Extensions Pending – USCIS 240 Day Rule ? Can Work ? Denied ?

In H1B Visa by KumarUpdated : 15 Comments

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 of Stay USCIS 240 Day Rule

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.USCIS Official Regulation for 240 Day Rule - Denial - Working Info

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

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 ?

Reference:  USCIS Employers Hand Book H1B extensions  ,  H1B Extension 240 day rule – Regulation.gov

   

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Comments ( 15 )

  1. Jay

    240 days grace period ending on 5th April, 2019. Employer got approval notice email recently on 28th March, 2019 as case was filed in premium processing.

    Quick Question: Can I work after 5th April based on email approval notice or I need to wait for hard copy notice and cannot work till then?

  2. Rakesh

    I want to know my current status
    I am here in USA on H1B Visa, Company A is holding my H1b visa and was working with Client A. on August 2018 my H1B and my I-94 is expired.
    Company A applied for H1B extension in normal process before my I-94 is expired.
    I worked for Client A on receipt until December 2018
    when my extension is in progress, i transferred my H1B to Company B and started working to Client B again Company B applied in normal process in January 2019.
    working with Client B on receipt.
    After getting receipt from the Company B for the H1B transfer, Company A withdrawn my H1B extension.
    what is my present situation, how long i can stay in USA and work in this situation ? What all scenarios ? how about 240 days rule ?
    is 240 day rule starts again for the new receipt ?
    Please answer me for these question

    my email : [email protected]

  3. Prakash Kumar Gupta

    Hi,

    This is Prakash and my 240 days are ending on 27th March 2019. I received RFE on 15th March and i am yet to submit response to RFE. Please note that my case is upgraded to Premium and then i got RFE.

    Now, My question is: Can i stay in US without working beyond 240 days and wait till I send RFE response and wait for approval or denial?

    Thanks in advance for your response.

  4. akshay

    My H1-B max-out date is approaching. I have an approved I-140 and my H1-B extension is filed, but I may not get the H1-B extension approval before max-out date.
    Will 240 day rule apply to me as well ?

  5. SUBHRA BHATTACHARJEE

    This is what CTS circulated among its employees today

    “Due to the lengthy government delays, associates waiting for a decision beyond 240 days on an H-1B Extension that includes an Amendment for change in client, project and/or worksite location only,may continue working while waiting for a decision on the pending petition.

    You may resume work and return to payroll effective Dec 26, 2018.”

    Is there any change in policy ?

    1. Balaji Mohan

      Hello Kumar,

      Thank so much for your post. Could you please help me with my case. My amendment was approved in 2017 including my work and home address. I have filed H1B extension in April 2018 and it RFE right now. My 240 days are getting over by Jan 23rd. I was thinking I should working from 241th day till I get my decision from USCIS. All of a sudden came back and told me that I am legally allowed to continue working after 240 days as well. They said that my petition is filed along with amendment. So 240 day rule will not be applicable for me.

      My question is, is it possible to apply my extension with amendment when there is no change in project/client/home address after my approved amendment in 2017.

      Looking forward for your response. Thank you.

      1. Dileep

        Hello Balaji,

        Could you please let me know if you have received any response about your question? If yes, please let me know what was that. I am in the same situation.
        Looking forward for your response.

  6. Deepak

    Hi,
    Please advice if 240 Day rule applies to H4 as well? Or, they can stay in US beyond 240 days as they are not working.

    My H1B (along with H4) was approved till 4th June 2018. After this extension, I went to India and while come back to US, me and my spouse got new I94 (at POE) till September 2018. But my son got I94 till 4th June 2018 only (at Same POE). We have filed the extension (H1+H4) and pending with USCIS. So, my son’s 240 days will be expired in the first week of February 2019, so, it is possible he can stay beyond 240 days? Please advice.

    Thanks for the help.

  7. KumarP

    Nice post, thanks for posting screenshots of rules, very thoughtful.
    I have further questions,
    1. If someone stays beyond 240 days, can they get driver license extended ? Especially in states like NJ where DLN is extended based on visa dates.
    2. After 240 days crosses , is it possible to move to H4 (get stamped out of the country) while waiting for H1 approval. If yes, when the the extension is approved how does H4 to H1 processed ? , do they have to go out of county again ?
    3. Assuming Yes for # 2 again, can a different or same employer files for new H1 ? is it possible to work on the receipt notice or approval is needed to start working on new H1?

  8. Confused H1B

    Hello Kumar,
    Thanks for the post !!
    I have below 2 follow up questions on the same though and would appreciate your response on the same:
    1. Does the same rule applies for L1B extensions also ?
    2. You said, “After 240 days you can not work but can stay in USA” , does that means you can continue employment with employer without doing any work ? If yes then can he pay the salary to the employee even if he is not working ?

    1. administrator
      Kumar

      1. Yes, anyone who files I-129 form. Check the first screenshot it says L-1.
      2. No, you cannot work for them after 240 days. They cannot pay you salary as well.

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