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 Rule||Work in US|
|H1B Amendment + Extension||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
H1B extension cannot work in USA after 240 days of i94 expiry with pending extension with USCIS. You can stay in US.
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.
H4 dependents can stay in USA while 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 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.
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