H1B Extension 240 Day Rule Allows Stay in US after i94 Expiry

USCIS pending H1B Amendment + Extension, Transfer can work after 240 days of i94 expiry. H1B extension can stay but not work. Status is Period of Authorized stay.

Written by Am22tech
  By Am22tech      Updated  25 Aug, 19

  41    


H1B Extension Pending 240 Day Rule

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 USA after 240 days of i94 expiry.

H1B transfer can stay and work in USA after 240 days of i94 expiry.

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.

240 day RuleWork in US
H1B Amendment + Extension Yes
H1B Extension No
H1B Transfer Yes

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

Can H1b extension stay & work in USA after 240 days?

H1B extension cannot work in USA after 240 days of i94 expiry with pending extension with USCIS. You can stay in US.

Can H1B transfer/Amendment work in US after 240 days?

H1B Transfer and Amendment cases are allowed to stay and work in US even after 240 days of i94 expiry while their application is pending with USCIS.

Can H4 stay in USA after 240 days of i94 expiry?

H4 dependents can stay in USA while H4 application is pending with USCIS even after 240 days of i94 expiry.

Can H4 EAD keep working after 240 days if H4 extension is pending?

H4 EAD card must be valid to keep working. If your H4 and i94 has expired, the chances are high that your H4 EAD card has also expired.
You cannot work while your H4 EAD renewal is pending.

Is My H1B Extension an Amendment?

Loo 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.

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“.

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.

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 new H1B visa application at a U.S. Embassy in your home country (not a third country like Mexico or Canada).

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.


USA Work in USA - H1B, L Visa
 






   41 Useful Questions & Answers from comments



  1. Jaswant Pujara
    Jaswant Pujara 13 Jul, 19 at 3:09 pm

    Hi, My L1 extension petition (executive/Manager) denied on 24th June. My I-94 is valid till 28th August. My employer is working on L-1 extension re-submission to be filed with USCIS before 28th August via normal application and not premium processing. I was explained that I can work in USA for 240 days from expiry date of my I-94 if decision is pending from USCIS. I went through 240 days rule but could not make out whether it applies to re-submission of L-1 extension petition over denial or not. I am concerned that If 240 days rule is not applied in this case, I will risk unlawful presence. Thank you in advance for your guidance.


    • Anil Gupta
      Anil Gupta 13 Jul, 19 at 3:28 pm

      The 240 day rule is applicable as long as you file extension before your current i94 expiry while you are in legal status.

      You are in legal L1 status right now and you can file another L1 extention when one has already been denied.

      There is no issue except that the new application has very high chance of denial if you file it without fixing the denial reason.

      Your time will not be counted as ‘unlawful presence’ in this case.

      Your employer is just banking on long processing times and wants to use that time to make you work in US.


      • Jaswant Pujara
        Jaswant Pujara 13 Jul, 19 at 3:57 pm

        Many many thanks Anil, really helpful answer. Sincerely appreciated.


      • Jaswant Pujara
        Jaswant Pujara 14 Jul, 19 at 10:52 am

        Hi Anil, are you doing a file review service? If yes, what is the best email id to contact you?


        • Anil Gupta
          Anil Gupta 14 Jul, 19 at 2:43 pm

          What kind of file review service are you talking about?


          • Jaswant Pujara
            Jaswant Pujara 14 Jul, 19 at 5:25 pm

            So my file as of now (denial notice, RFE response and earlier backup). If you are able to provide advice on it that would help while preparing on re-submission. I would consider it as a paid service.


            • Anil Gupta
              Anil Gupta 14 Jul, 19 at 6:15 pm

              I would suggest to follow your attorney’s advice and do as they say.

              I don’t provide this service at this time.


              • Jaswant Pujara
                Jaswant Pujara 14 Jul, 19 at 7:44 pm

                Thank you for the quick response, appreciated.


  2. H1B extension refilling
    H1B extension refilling 3 Jul, 19 at 5:36 am

    Hello,
    I received a denial on my H1B extension in february 2019. My i94 expired in March 2019 and my firm refiled the H1B extension before the i94 expiry. I am currently under the 240 day rule. Can I apply for another country’s visa in US while under this period of authorized stay?
    What happens if USCIS denies the petition and my passport is stuck with the other country’s embassy?


    • Anil Gupta
      Anil Gupta 13 Jul, 19 at 3:28 pm

      You will have to get your passport back from whatever embassy its pending with.


  3. ram nakoti
    ram nakoti 17 May, 19 at 6:18 pm

    Hello,

    In applied for Extension along with my spouse on December 2018.
    Recently USCIS released I-539/I-539A new policy?
    On April 22 i received an RFE for extension
    Now my spouse and my daughter need to get Biometric?
    OR not can you explain??


  4. Sreekanth
    Sreekanth 13 May, 19 at 1:15 am

    Hi, My I 94 Expires on 31st May 2019.
    My current employer filed for extension on 7th May. Yet to receive receipt number. Employer B filed for H1 B transfer on 10th April. Yet to receive receipt notice. Can I join Employer B before getting the receipt notice. And why my new employer B and attorney has not received the receipt notice even after one month.


    • Anil Gupta
      Anil Gupta 13 May, 19 at 4:58 am

      I strongly suggest to join new employer only after transfer approval. Why have you not filed the transfer in premium?

      The receipt notice should have been received by now. You can ask your employer.
      You cannot join new employer without H1B receipt.


      • Sreekanth
        Sreekanth 13 May, 19 at 5:36 am

        Thanks Anil for quick response.
        Is there a way we can enquirer USCIS about the receipt number. Please let me know. What if I don’t get receipt number before my I 94 expiry though I have applied for extension and Transfer.


        • Anil Gupta
          Anil Gupta 13 May, 19 at 5:57 am

          Your employer can call USCIS and ask for the receipt number. You cannot call USCIS for H1B application.

          My suggestion is to NOT join new employer if you don’t receive receipt number before i94 expiry.


          • Sreekanth
            Sreekanth 13 May, 19 at 5:58 am

            Is there a possibility that new employer can upgrade the transfer to premium processing without receiving the receipt number?

            Does the new employer has only way to re-file the transfer freshly.

            Please suggest


            • Anil Gupta
              Anil Gupta 13 May, 19 at 6:32 am

              They need receipt number to upgrade to premium.


  5. 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


  6. 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?


  7. 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?


  8. 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.


  9. 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.


  10. 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.


  11. 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 ?


  12. 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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