Contrary to Media Reports, USCIS Has Not Relaxed H-1B Extension Rule
You may have seen recent articles claiming H-1B holders can remain in the US for 8 months after job loss:
or that USCIS has decided to relax H-1B visa deadlines:
Beware that this completely inaccurate information. USCIS has clearly stated that it is not relaxing any H-1B related regulations.
Although USCIS issued a News Alert on its website on April 13, 2020, COVID-19 Delays in Extension/Change of Status Filings, the alert did not provide any new guidance or create any new benefits for H-1B holders. The News Alert only confirmed existing regulations that already allow for late filing of an extension of stay or change of status due to extraordinary circumstances. It is important to understand that this is discretionary relief. USCIS is not required to accept a late filing. Whether the Service will accept a late filing to extend or change status depends upon whether the reason for the delay was beyond the applicant’s control and the length of delay in filing. These circumstances will be evaluated on a case-by-case basis and may ultimately not be accepted as a valid excuse for late filing.
H-1B workers must continue to maintain status and file any necessary extension on time. When an employer files an extension of stay for an existing H-1B worker, that pending extension does provide up to 240 days of continued employment authorization after the H-1B worker’s current I-94 expiration date. It is incorrect to interpret this to mean that an H-1B worker can remain in the U.S. for this 240 day period after a job loss. The 240-day rule simply provides work authorization for the H-1B holder to continue working for the employer that filed the extension on their behalf. If that employment is terminated and the I-94 has already expired, there is no 60-day grace period. The 60-day grace period is only applicable when the I-94 has not yet expired.
The only flexibility USCIS has provided thus far for H-1B holders is an extended deadline for responding to a Request for Evidence if it was issued between March 1 and May 1, 2020. Otherwise, all existing regulations involving H-1B status and compliance remain in effect and H-1B holders must continue to properly maintain status, even in the midst of a pandemic.
By: Rahul Reddy & Emily Neumann
Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries.
Emily Neumann is the managing partner at Reddy & Neumann, P.C. and is responsible for the overall functioning of our firm. She consults with company Legal and Human Resources teams to provide top-notch client service and advice regarding their temporary and permanent work visa sponsorship needs among new hires, current employees, and their families.