Due to the long processing times and the lack of premium processing for most of last year, many diligent employers have been left concerned over how long their employees with pending petitions are authorized to continue working. In many cases, these H-1B beneficiaries had a timely filed extension that has been left pending adjudication by USCIS for long enough that their I-94 has since expired.
Can the H-1B employee still work when they have a pending extension of status request but an expired I-94?
Thankfully, USCIS has provided guidance known commonly as the 240 day rule. Generally, the employee may continue working for the same employer for up to 240 days after the I-94 expired OR until USCIS makes a decision on the petition, whichever is sooner.
For example, Employee Joe’s employer timely filed an extension petition on August 1. Joe’s I-94 then expired on October 1, but the extension filed in August is still pending! In this scenario, Employee Joe would be authorized to continue working up to 240 days past October 1. However, if the pending petition was adjudicated and denied on October 25, Joe’s work authorization would end on October 25. In this scenario, Employee Joe would lose his work authorization on October 25 despite the 240 day clock extending well beyond that date because the rule only allows for continued work authorization up to whichever date occurs first.
When exactly does the 240 day rule apply?
At first glance, this 240 day rule may appear to conflict with the portability provisions provided under AC-21 for H-1B petitions. Generally, this provision allows employees to immediately begin working once a new amendment or change of employer petition is filed for them, presuming the new petition was filed while the employee was maintaining valid H-1B status.
Amendment petitions can include an extension of stay request and change of employer petitions usually include an extension of stay request – so are these extensions also subject to the 240 day rule? Do employers/employees need to remain cautious if the employee began working under the portability provisions and the pending amendment or change of employer petition starts approaching that 240th day post I-94 expiry? The answer to both these questions would be no.
The official rule from USCIS only speaks of the 240 day rule if you are continuing employment with the same employer, thus suggesting that the 240 day rule only applies to H-1B petitions for continuation of previously approved employment without change with the same employer. Beneficiaries of timely filed H-1B amendment, change in previously approved employment, and change of employer petitions would be allowed to continue working while the petition remains pending without worry of the 240th day mark after I-94 expiry.