The answer to “can I stay in US after 240 days” is yes.
- H1B extension can stay in US after 240 days of i94 expiry but cannot work.
- H1B Amendment with extension can stay and work in the USA after 240 days of i94 expiry.
- H1B transfer can stay and work in USA after 240 days of i94 expiry.
Start counting the calendar days from the date stamped on your i94. You can use this calculator to find the 240-day mark.
The 240-day rule allows an H1B visa worker to stay and work in the USA for up to 240 days or USCIS takes a decision (whichever is earlier) while the H1B extension is pending with USCIS after i94 expiry.
|USCIS 240 day Rule||Can Stay in US after 240 days?||Work in US after 240 days?|
|H1B Amendment + Extension||Yes||Yes|
|H4 Extension||Yes||Yes (with H4 EAD, if primary H1B is allowed to work)|
The same rules apply for an L1 work visa too. H4 and L2 dependents can also stay as long as H1B and L1 primary can.
USCIS Official 240 Day Guidance
Official USCIS guidance only says to STOP working after 240 days in case of H1B applicants continuing with the “SAME EMPLOYER“. Therefore, an H1B extension worker is simply not eligible to work after 240 days but can stay in the US while waiting for the H1B result.
The H1B Amendment + Extension case is an interesting one and most attorneys have interpreted that USCIS does allow working after 240 days.
H1B extension cannot work in the USA after 240 days of i94 expiry with pending extension with USCIS. You can stay in the US.
You are not in “unlawful presence” after your i94 expiry if you have filed an extension of your visa before your i94 expired.
H1B Transfer and Amendment cases are allowed to stay and work in the US even after 240 days of i94 expiry while their application is pending with USCIS.
H4 dependents can stay in the USA while the H4 application is pending with USCIS even after 240 days of i94 expiry.
H4 EAD card must be valid to keep working. If your H4 and i94 have expired, the chances are high that your H4 EAD card has also expired.
You cannot work while your H4 EAD renewal is pending.
The 240 day period is not allowed in case of H1B 6 year max out time. You should stop working on the last day of your H1B 6th year if you cannot file a 7th extension using PERM or i140.
The same rule applies to L1 max out time too.
Is My H1B Extension an Amendment?
Look at the Form I-129 filed by your employer. If you do not have access to the application form filed for you, you should ask your employer or attorney.
Each H1B Amendment is also an H1B extension application.
If there is any non-material change in a 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 an “amended petition“.
The official USCIS rule only talks about stopping work at a 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.USCIS
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 the US.
Many Indian IT consulting bigwigs like TCS, Infosys and Cognizant do file amendments frequently. Most of them allow you to stay and work beyond 240 days. Some of them may ask you to leave the US based on how comfortable their attorney is with this extended stay rule.
H1B Status after i94 Expiry
Your status in US is Period of Authorized Stay while your H1B is pending after i94 expiry.
If your application for an H1B extension is approved, the approval will start from your I-94 expiry date. Your time spent in USA after i94 waiting for USCIS decision will be considered legal.
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“.
Your H1B visa stamped in your passport becomes void after H1B denial by USCIS. Once your visa is void, you must apply for a new H1B visa application at a U.S. Embassy in your home country (not a third country like Mexico or Canada).