240 Day Rule H1B Amendment + Extension and Transfer

Written by Anil Gupta
  Written by Anil Gupta - Updated on  10 Apr, 19

22  USA Work in USA - H1B, L Visa

H1B Extension Pending 240 Day Rule

240 day rule allows a H1B visa worker to stay and work in USA for up-to 240 days or USCIS takes decision (whichever is earlier) while the H1B extension is pending with USCIS after i94 expiry.

Can H1B Work after 240 days?

The answer to Can I stay in US after 240 days depends on type of H1B application is pending with USCIS. Here is the snapshot:

H1B after 240 days of i94 expiryAmendment + ExtensionOnly ExtensionTransfer
Can Work and Stay in US? Y N Y
Cannot work but Stay in US?NA YNA
Status After i94 expiryPeriod of Authorized Stay

 

Official USCIS guidance only says to STOP working after 240 days in case of H1B applicants continuing with “SAME EMPLOYER“. Therefore, a H1B extension worker is simply not eligible to work after 240 days but can stay in US while waiting for H1B result.

The H1B Amendment + Extension case is an interesting one and most attorney’s have interpreted that USCIS does allow working after 240 days.

H1B amendment + extension, transfer can work after 240 days
H1B amendment + extension, transfer can work after 240 days

Related: Current H1B Processing Time

How to find if my H1B is an Amendment?

You can find it by looking at the form I-129 filed by your employer. If you do not have access to the application filed for you, you should ask your employer or attorney.

H1B Amendment + Extension can work after 240 day - USCIS rule
H1B Amendment + Extension can work after 240 day – USCIS rule

If there is any non-material change in job like job-title change or increased salary, then you would select “change in previously approved employment.”

If the employee has any material change like a new work location outside of MSA (Metropolitan Statistical Area), then you would select “amended petition“.

In layman’s term, both types of petition are known as H1B Amendment with extension.

The official USCIS rule only talks about stopping work at 240 day mark if you are working for ‘Same Employer‘.

These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.

Hence, In both types of H1B Amendment, you should consult your employer and attorney.  If they are okay, you can keep working after 240 days in US.

Legal US Status After i94 Expiry

Your status is “Period of Authorized Stay” until a decision is made by USCIS on your pending application.

If your application for an H1B extension is approved, the approval will relate back to the date your I-94 expired, and your status while your application was pending will then be considered to have been lawful.

If your application is denied, you should stop working and leave the United States immediately within 10-15 days. Your status starting the date of denial is “Unlawful Presence“.

The time period between your i94 expiry and the H1B extension/transfer denial date is still counted as “period of authorized stay“.
Also, your H1B visa stamped in your passport becomes void after denial.

Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).

H1B 240 Day Calculator

Start counting the calendar days from the date stamped on your i94. You can use time and date calculator to find the 240 day mark.

Example: If your i94 expiry date is Jan 1, 2019, add 240 days from starting Jan 2 and you will get Aug 30, 2019 as the 240th day.

   22 Questions & Answers



  1. Thirumalesh Yadagiri
    Thirumalesh Yadagiri 7 Apr, 19 at 11:58 am

    Hi Amit,

    I have a question regarding, how many number of days that USCIS can allow a person to stay when his H1B Extension+ Amendment petition’s (RFE is responded after crossing 240 days) based on its (USCIS) decision.


    • Anil Gupta
      Anil Gupta 7 Apr, 19 at 2:09 pm

      Please read the article above. It has clear answer to your question.
      RFE does not make any difference to the time allowed to stay.


      • Thirumalesh Yadagiri
        Thirumalesh Yadagiri 8 Apr, 19 at 11:58 am

        Hi Anil,

        Thanks for the response, I am talking about the stay post USCIS decision. How many days does USCIS can allow a person to stay in US if the petition is rejected.


        • Anil Gupta
          Anil Gupta 8 Apr, 19 at 12:19 pm

          You start your ‘unlawful presence’ immediately on denial. 10-15 days to leave USA are considered normal though.


          • Thirumalesh Yadagiri
            Thirumalesh Yadagiri 10 Apr, 19 at 8:44 am

            Thanks Anil


  2. Dave Sharma
    Dave Sharma 2 Apr, 19 at 6:37 pm

    I94 Expired, Orignal petition got RFE, but if I do H1B transfer, then there are two possible cases.

    1) The original petition gets approval, and later transfer is also approved. – Do I need to go out of the country and get stamping if I want to work on H1b transfer company?
    2) The original petition got denied and H1b transfer approved. – Do I need to go out of the country for and get stamping if I want to work on H1b transfer company?


  3. Santosh
    Santosh 2 Apr, 19 at 2:45 pm

    Here is my scenario
    1st H1b extension is filed for Client A (NYC) in October 2018 still pending for result. I94 is expired in Nov 2018.
    Project ended with Client A and Joined another project with Client B (Also in NYC). My wife is pregnant and I want to make sure I dont get into immigration issues.

    Questions:
    What should be next steps for my employer?
    Amendment OR Extension cum amendment OR Just posting the LCA?


    • Anil Gupta
      Anil Gupta 2 Apr, 19 at 3:03 pm

      How can you join the new client project without filing the H1B Amendment? This itself sounds like a violation to me.


      • Santosh
        Santosh 2 Apr, 19 at 3:40 pm

        Becuase it is within the same MSA. Both the jobs are in NYC.


        • Anil Gupta
          Anil Gupta 2 Apr, 19 at 3:57 pm

          Then, what is your confusion if you know that H1B amendment is not required?


  4. NNA
    NNA 20 Mar, 19 at 9:59 pm

    Hi, just checking if you can advise on my situation.

    I have I-140 approved recently, me and my wife both received EAD. Me and my family are currently waiting for I-485 interview notice to arrive. My H1B extension application was lodged in July 2018 without PP (Premium Processing), since then its pending still not approved. Last status update to I-485 was that documents have arrived on local office, so we are expecting interview notice soon. I-94 expired on 09/30/2018.

    Will it raise any issue in interview that I-129 still not processed? Should I go for PP now for I-129 so possibly it’s processed before interview?

    Your reply will be appreciated. Thank you.


    • Anil Gupta
      Anil Gupta 21 Mar, 19 at 7:49 pm

      Your question about filing i485 while H1B is pending is out of scope of this article and has been added to our forum. I have answered it there too.

      You can ask follow up question on the forum itself. We answer within 1-24 hours.


  5. NNA
    NNA 20 Mar, 19 at 11:04 pm

    I am explaining my situation in detail below:

    1. H1B expired on 09/30/2018. My lawyer filed extension in July-2018, not yet approved. They raise RFE and response sent a month ago. Last status showing they received response of RFE.

    2. My I-140 and I485 concurrent filed in December, 2018. I-140 is approved a month ago. We already received EAD and AP.

    3. My I-485 status showing documents arrived in local office. My location doesn’t have that much queue. I am expecting interview notice to be received soon.

    4. As per your post above, I was on “Period of Authorized Stay” between 09/30/2018 and the date when I-485 was filed (December, 2018).

    I am trying to understand:

    1. If I-129 is not approved before interview date, will it raise any issue during interview and in I-485 processing?

    2. My I-485 was filed during “Period of Authorized Stay” when I wasn’t in H1B status, , is it an issue?

    3. Should I go for PP now for I-129?

    Thank your for your advice.


    • Anil Gupta
      Anil Gupta 21 Mar, 19 at 7:49 pm

      Your question about i485 interview while H1B is pending is out of scope of this article and has been added to our forum. I have answered it there too.

      You can ask follow up question on the forum itself. We answer within 1-24 hours.


  6. Ren
    Ren 8 Mar, 19 at 6:40 pm

    I applied for H1B extension on May 2018, upgraded to premium in Feb 2019 and got RFE in Mar-2019
    My 240 days is gonna end in APR-07, My petition is Amendment(same employer,same Client, but different client address)+Extension.
    As per table above it says “Can Work and Stay in US“.
    Where it is mentioned USCIS rule book? or Where this data is been taken? Just curious to know


    • Anil Gupta
      Anil Gupta 8 Mar, 19 at 9:18 pm

      If you have read the article above, I have clearly mentioned that there is no USCIS documentation for it. Please read it again.


  7. Sam
    Sam 19 Feb, 19 at 11:13 am

    Hi, My case is extension + amendment, my case was earlier in california and now has moved to Vermont.. I had site visit at my office by an USCIS official. I want to understand how long would it take from the site visit. Also at this point would you recommend premium processing or wait ?


  8. GKR
    GKR 5 Feb, 19 at 2:36 pm

    Hello – My case is an extension + amendment and my 240 days cut-off fall son the 26-FEB. I got a RFE recently and also I got to know that I can continue working here until my case is adjudicated. The query is for my spouse who is on a H4 visa for which I haven’t heard back from USICS. I know that H4 is tied up with H1, but just want to make things clear. Can my wife stay with me till a decision on my case is made or should I keep follow up for her case separately. There has been no update on her case except that it has been transferred to another center. Please help. Thank you.


    • Anil Gupta
      Anil Gupta 9 Feb, 19 at 10:27 am

      H4 can also stay with you in USA after 240 days of i94 expiry. Don’t worry.


      • GKR
        GKR 9 Feb, 19 at 2:09 pm

        Hi Anil – Thanks a ton for your clarification and immediate response.


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