What if my H-1B Extension is Pending More Than 240 Days?

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.

H-1B Extensions

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.

H-1B Transfers

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:

  1. The H-1B workers was lawfully admitted;
  2. The new petition is “nonfrivolous;”
  3. The new petition was filed before the expiration of the current period of stay (i.e. before the current I-94 expiration); and
  4. 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.

Do you need assistance with a family-based or employment-based immigration matter? Contact our office at 804-396-3412 or at info@sumnerimmigration.com today to learn how we can help!

Recent blog posts

Great news for those applying for naturalization to become a US citizen! USCIS will now continue to use the 2008 version of the civics test. In the last days of the Trump administration, USCIS announced that they would use a longer and harder version… Read More
By Nikita Hernandez, Sumner Immigration Law Paralegal It’s official! You’ve become Mr. or Mrs. and want to take on your spouse’s name while getting your US permanent residence situated, but when is the best time to do that? APPLYING FOR A NAME… Read More
One of the most common questions that we receive from our clients is about case processing time. The USCIS and DOL estimated case processing times are available online, but that source can be frustrating as they sometimes give a wide range of timefra… Read More

Read More Blog Posts

“I worked with Emily for my EB2 green card. Throughout the process, Emily and her assistants were very prompt and responsive. Everything was completed in a timely manner. She is very reliable and was able to answer any questions that I had during the… Read More"
– Immigration Client
“She is one of those lawyers you can trust and will be very helpful in any situation. Having known her for the last few years, I would recommend her as one of the best in the Industry who is very quick to respond. You can expect great results in any s… Read More"
– Muneesh B.

More Client Reviews