After applying for an H-1B visa extension, you can generally continue to stay and work in the U.S. for up to 240 days beyond your I-94 expiration date, provided specific conditions are met. This crucial provision allows H-1B visa holders to maintain their authorized employment and lawful presence while U.S. Citizenship and Immigration Services (USCIS) processes their extension request.
Understanding the 240-Day Rule
The 240-day rule applies when an H-1B extension petition is filed before your current H-1B status (as indicated on your I-94 record) expires. This rule is designed to prevent a gap in work authorization and lawful status for individuals whose extension applications are still pending.
Key Conditions for the 240-Day Rule:
- Same Employer, Same Employment: The extension petition must be seeking to continue the same employment with the same employer. This rule does not typically apply if you are seeking a change of employer or a significant change in job duties, as a new H-1B petition (often requiring new H-1B cap approval or portability rules) would be necessary in those scenarios.
- Timely Filing: The H-1B extension petition must be properly filed with USCIS before your current H-1B I-94 record expires. If you file after your I-94 expires, you generally lose your authorization to work and may accrue unlawful presence.
What Happens During the 240-Day Period?
During this 240-day period, or until a decision is made on your H-1B extension, whichever comes first, you are authorized to continue working for your employer under the terms of your previous H-1B approval.
Scenario Outcomes:
| Status of Extension Application | Impact on Stay and Work Authorization |
|---|---|
| Approved within 240 days | Your new I-94 expiration date becomes valid, and you can continue working under the new approval. |
| Pending beyond 240 days | You must cease employment upon reaching the 240-day limit from your I-94 expiration date, even if the decision is still pending. Continuing to work beyond this period without approval would be unauthorized. However, your stay remains lawful while the petition is pending. |
| Denied | Your work authorization immediately terminates upon denial, and you should make arrangements to depart the U.S. promptly to avoid accruing unlawful presence. |
Practical Insights and Considerations
- Proof of Continued Authorization: While your H-1B extension is pending and you are within the 240-day window, your employer can accept your I-797C Notice of Action (receipt notice for the filed petition) along with your expired I-94 and previous H-1B approval notice (I-797A) as evidence of continued work authorization for I-9 purposes.
- Travel During Pendency: Traveling outside the U.S. while an H-1B extension is pending can be complex. Generally, departing the U.S. may be considered an abandonment of your extension application, unless you have a valid H-1B visa stamp and re-enter, which could potentially invalidate the pending extension and rely on your previous H-1B status. It's often recommended to wait for approval before international travel.
- Premium Processing: If you are concerned about reaching the 240-day limit or need a quicker decision for travel or other reasons, your employer may opt for USCIS Premium Processing. This service guarantees a response from USCIS (approval, denial, Request for Evidence, or Notice of Intent to Deny) within 15 calendar days for an additional fee.
- Monitoring Your I-94: Always keep track of your I-94 expiration date, which can be found on your most recent I-94 arrival/departure record (obtainable from the Customs and Border Protection website). The 240-day count begins from this date.
- Consulting an Attorney: Immigration laws are complex. It is always advisable to consult with an experienced immigration attorney to understand your specific situation and ensure compliance with all regulations. For official information regarding H-1B status and extensions, refer to the U.S. Citizenship and Immigration Services (USCIS) website: USCIS FAQs for Individuals in H-1B Nonimmigrant Status.
