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 expiry||Amendment + Extension||Only Extension||Transfer|
|Can Work and Stay in US?||Y||N||Y|
|Cannot work but Stay in US?||NA||Y||NA|
|Status After i94 expiry||Period 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.
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.
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.