H1B Visa Extension 240 Day Rule Details

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

In H1B Visa by KumarUpdated : 57 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?

H1B Extension of Stay USCIS 240 Day Rule

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?

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

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

FAQs

Does the 240 Day Rule apply to L1 Petitions as well ?

Yes, it applies to anyone using the form I-129 such as L1

When does the 240 Days Start ?

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.

Does 240 Day Rule applies to Extension + Amendments ?

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.

What all Visa holders can use 240 day rule ?

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.

Does 240 Day Rule apply for H1B, L1 Transfer ?

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 ?

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

   

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Comments ( 57 )

  1. Venu

    Hi Kumar,
    Applied H1B1 extension on Nov,14-2020. when I can I do “outside normal processing time” service request online?

    Thanks,
    Venu

  2. KPatil

    KP
    If L1B extension approved but I need to travel outside of US for family reasons. Does that require new visa process or it’s just stamp directly can be obtained

    1. administrator
      Kumar

      KPatil,
      You need to get stamping done to re-enter, if your L1B visa stamp on passport has expired. If it is valid, you can use that and the extension and re-enter back.

      1. KPatil

        Thanks Kumar for prompt reply.
        My visa is already expired.
        I was more looking for; is that a fresh visa interview process from India where there might be uncertainty again of rejection ?
        Trying to check if travel in extended period can create any issues to come back.

        1. administrator
          Kumar

          KPatil,
          You need new stamping. Your travel does not have impact on stamping, all they care is documents and your fit for the role, don’t worry.

  3. Vish

    Hi,

    My previous H1B visa expired in September 7, 2019. Extension was filed in July. I got an RFE in Feb 2020 and RFE response will be filed this week. The plan was to file this in premium but alas, due to COVID situation USCIS suspended all premium processing, RFE response will have to be filed in regular. My 240 days since visa expiry is on May 4th. Owing to this special COVID situation, will there be any relaxation that will be made on my case which will let me continue work in US

  4. Jag

    Kumar, could you tell me when 240 rule will start. I am in very position I applied i94 ext in Aug 2019 but my i94 exp in dec 19. Does 240 day rule starts from Jan 1 2020?

    1. administrator
      Kumar

      Jag,
      It starts from I-94 expiry date. If your I-94 was extended until Jan 1st, then it starts from that day, but if it was not extended, then it starts from Aug 2019.

      1. Jag

        I got bit confused with your response.

        My i94 approved till 31st dec 2019

        But I started applied extension for future dates from Jan 1 2020.

        My question is does 240 day rule starts from Jan 1 2020 correct ?

        1. administrator
          Kumar

          Jag,
          I re-read it, I missed the part that it was extended till Dec 19. In any case, it starts from Jan 1st, as that’s when your I-94 expired.

  5. Kumar

    Hi Sir,

    Please help, I have a complicated situation:
    Q: As per i797 my visa date was 20nd Nov19, i have submitted extension on 10th Nov19(Regular). So I am staying on 240 days rule. I got RFE on 11thMarch20 for extension. Response for RFE is yet to be filed.
    Q. if my employer fire me now and does not submit my RFE response, then what can I do? Can I stay in USA?
    Q. If my employer fires me but accepts to submit my RFE response, then Can I stay without Job till i get my Approval/Denial on my H1B Extension?
    Q. OR should i immediately travel to India as and when fired by Employer, as i don’t have valid Visa? Is my H1B still valid even If i (my Employer) don’t submit RFE response?
    Q. Can other employer transfer my H1B if current employer fires me (In this 240 days rule)? and can new employer submit my RFE response?

    1. administrator
      Kumar

      Kumar,
      No, you cannot stay, you need to leave, if they do not respond.
      Well, you are in something called period of authorized stay, you need to maintain status until you hit that 240 days.
      Discuss with your attorney and take action accordingly as it can be complicated.
      As your I-94 is expired, you would be in something called as bridge situation, where you would need the middle company H1B to be approved…

  6. GIRIDHARA B.S

    Hello sir,

    please help me on this

    my amendment RFE got denied(location : Seattle client:ABCD) 12th FEB-2020, but my I-94 & original petition(location : Austin Texas client -WXYZ) is valid till AUG11th -2020.

    (earlier project location no work now, as it was a maintenance project I cannot go back to Austin now)

    now my question is

    1.as my RFE got denied (I am yet to receive mail on decision notice) how long I can stay in US ?

    2.I can reapply the amendment for the same location and same client ? i.e. (location : Seattle client:ABCD)

    3.is there any out of status problem ? how long I can stay in US ? let me know

    Thanks in advance.

    1. administrator
      Kumar

      1. You can stay until you get the actual paper notice and then plan.
      2. You may do that.
      3. You are not technically not out of status yet, only your Amendment is denied. Your old one is technically valid, just that your project is over. You need to Discuss with your attorney on the options.

  7. Random

    Hi

    My h1b expires on 31st dec 2019 and i94 expires on jan 10th 2020. I have applied for h1b extension and got denial on dec 19th. My employer said he can refile the new petition again before i94 expires. I have below questions now
    1) I have to apply before 31st dec or before jan 10th?
    2) After re apply if I get a denial again then can I still apply again and stay for 180 days or 240 days and work?
    3) My employer is saying that after i94 expiry we can still apply in regular processing and you can stay till 180 days. if before i94 we apply he said I can stay for 240 days ? is it ture?

    4) On the other hand my future wife is a green card holder in usa. Can I be her dependent ? what are the options while my h1b file in progres??

  8. Abhishek

    Hello,

    My current i94 and VISA expires in Jan 2020. My employer filed the H1 extension (2nd for the last term before maxing out) on 12th Nov 2019 in Premium processing. On 20th Nov 2019, I received an RFE and the deadline for the RFE response is Feb 20 2019.

    My Question is:
    a. if the immigration team does not file the response before 20th jan 2020, does that put me under the 240 day rule?
    b. if the RFE response is filed and the extension gets denied (hopefully not), can we file another request petition?
    c. if the RFE response is filed and the extension gets denied (hopefully not), do I have to leave the country? If yes, how much time does it give me?

    1. administrator
      Kumar

      Abhishek,
      a. Technically yes.
      b. That is possible only, if your I-94 is valid.
      c. Yes, you need to…
      Once your I-94 expires, you are in difficult situation and will be forced to leave. So, make plans to find an alternate employer and get H1B approved with them or ask your team to act fast and get the decision soon.

  9. Raman

    Hi my perm is in progress. My current employer h1b transfer was approved it’s valid until Dec 6 2019.which is 6 year end period for me. Now if my perm is approved and 140 also is approved before December and my employer file a extension of h1b based on approved 140 and if that is pending decision can I stay after Dec 6 2019 which is 6 year end period for my h1b? Does the same 240 day rule apply in my case?

  10. Lisa

    My non cap H1b will expire in December. I requested a h1b extension but realized it becomes change of employer. The same company I work now but the name and tax ID changed. I don’t know what happened to the company. How much the chance my case will be denied? Should I look for another job as soon as possible?
    My i140 was approved last year. If 485 becomes current during the waiting period of h1b transfer approval, will I have to refile I140?

  11. goodieguy

    I’ve similar question.

    1) I joined company A on Nov 18, 2015 and they filed H1-B transfer. My H1-B from previous employer had I-94 valid till Sept, 2017.
    2) H1-B from company had no result from USCIS till July 2016.
    3) I applied H1-B from company -B on July 11th, 2016 and started working for them from July 12th. H1-B was approved on July 21st, 2016.
    4) When company-B filed my H1-B, my H1-B petition from company-A was pending for 238 days. but I started to work for company-B on July 12,2016 i.e. 238 days of petition pending from company-A.

    My question is, did I overstayed or I was within the rule?

    Please help me understand.

    Thanks

        1. administrator
          Kumar

          You were in period of authorised stay. Read Period of Authorized Stay vs Out of Status . It is slightly tricky here as you were in Bridge situation with Company A petition acted as Bridge….technically, the bridge petition should also be approved, to have B’s approval…I would suggest you check with your attorney at B once to make sure all is good.

          1. goodieguy

            Thanks for the clarification. I’m going to go with the truth and state the same in the form DS160. Honesty is the best policy.

          2. goodieguy

            When I say “state the same” means I will state I was out of status because I’m not sure about it. Let them decide. 🙂

            Thanks

          3. administrator
            Kumar

            No, you should not say that as it is grey area. You just say that it was applied when the other was pending and then let them decide…

  12. Emma

    I almost reach 240 days after file the extension. They request REF. My question is, just in case, they will denied the case. Do I need to leave the country on the same day I receive the paper notification? Or I still have 10 days notification to take care of things? Thank you very much for the help. Or do I need to leave the country once they denied from website, not even wait I receive the paper notification. I really appreciate your help.

    1. administrator
      Kumar

      You should try to leave immediately to avoid issues. Online status is not reliable at times, you should wait for the paper notice, and then confirm and leave. There is no grace period as such, unless you have a reason to stay for 10 days, you should not delay…you should plan to leave at the earliest…Talk to your attorney and plan.

      1. Emma

        Thank you so much for the information. I really appreciate it. I need to take care my car and house if I do get a denied. Does that count as the “reason” I need to stay and take care of things? Thank you very much for your help.

        1. administrator
          Kumar

          Well, it may be, if you are planning to pack up and leave. Talk to your attorney on this and then take a decision.

    2. Ashish Kumar

      my i94 expired on Aug 31th, My current employer A had filed extension with amendment before the expiry somewhere around Aug 27th(USCIC acknowledgment day). Meanwhile I also got a new employer B, who initiated transfer in USCIS on Aug 30th (ack day).
      1) I am joining Employer B, what will happen to Extension with amendment petition which has been filed in premium?.
      2) Can it live, if my employer A wish to get the result for extension?
      3) If extension gets approved, then can I return back to Employer A, if transfer gets denied?

      1. administrator
        Kumar

        1. If they plan to pursue it, they would leave it like that. They can also withdraw their application, it is up to them. It does not impact you.
        2. Yes, it can if they want to pursue it.
        3. Well, this can be slightly tricky as you were in period of authorized stay and technically not in lawful status , you maybe able to go back before the denial, but from the day of denial you are not in period of authorized stay, so it is grey area and tricky…You should talk to your attorney at A or B and then make an informed decision.

        1. Ashish Kumar

          Thanks Kumar, your answer number 3 really got me thinking.. but so far, this has helped a lot !!
          Guess what I have received RFE from Employer B, and all the possibilities are narrowing down to what I already speculated in my questions. It has become wait and watch game now.. Thankfully Employer B has not /will not revoke the extension petition.

    3. Goodieguy

      My experience with visa stamping

      It is better to be honest with your answers in for DS160. State all the answer truthfully. I mentioned about out of status in my for DS 160 and VO simply asked what happened and I gave the answer honestly and my visa was approved without any further question.

      So my take is mentioned everything with true intention and you won’t see any issue with your visa stamping. If you falsify any of the answers then there are more chances of your visa getting rejected. Don’t hide, simply mention whatever is correct.

  13. 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?

  14. 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]

  15. 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.

  16. 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 ?

  17. 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.

  18. 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.

  19. 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?

  20. 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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