As many H-1B employers and employees know, the USCIS processing time for H-1B extensions and transfers is currently taking several months. Many employees and employers may wonder how long the H-1B employee is authorized to work or remain in the US while the H-1B petition is pending. This is a seemingly simple question, with a complex answer.
If the H-1B petition is simply an H-1B extension (not an H-1B transfer), the H-1B employee is authorized to work for up to 240 days beyond the expiration of their current period of stay (i.e. beyond the expiration listed on their most recent I-94 card). That means that once the 240 day period has passed, the H-1B employee is no longer authorized to work (see 8 CFR 274a.12(b)(20)). However, the H-1B employee is permitted to remain in the US while the timely filed H-1B extension petition is pending, even beyond the 240 day mark.
The answer to this question may be different if the petition is for an H-1B transfer. The AC21 statute allows for H-1B portability, meaning a person in H-1B status can accept new employment when an H-1B transfer petition is filed for them, assuming they meet these requirements as well:
- The H-1B workers was lawfully admitted;
- The new petition is “nonfrivolous;”
- The new petition was filed before the expiration of the current period of stay (i.e. before the current I-94 expiration); and
- The H-1B worker has not been employed without authorization before the petition is filed.
As of the time of this post, we do not have AC21 regulations from USCIS yet (they will be published in the coming months). Until and unless we have further clarity, it would seem from this statute that an H-1B worker for whom an H-1B transfer is filed can work indefinitely while the H-1B petition is pending, and is not necessarily bound to the 240 day rule, which applies to H-1B extensions as outlined above. However, this apparent conflict between the AC21 statute and the existing regulation that applies to H-1B extensions has not yet been specifically addressed by USCIS.
If an H-1B extension petition has been pending for several months and the H-1B employee must continue working without interruption, it may make sense to upgrade the petition to premium processing to have the petition adjudicated before the 240 day mark.
If an H-1B employee has an H-1B transfer petition pending, there is room to argue that per the AC21 statute, the employee may keep working even beyond the 240 day mark. However, because there is not clear guidance on this (at least as of right now), the H-1B employer and employee should seek counsel from an experienced immigration attorney if they are coming up on the 240 day mark.
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