If your H-1B extension has been pending for more than 240 days past your I-94 expiration, you must stop working, but you generally do not have to leave the United States. That second half is the part we see misunderstood most often, and getting it wrong can cost you your case. To be precise: a timely, pending extension generally protects you from accruing unlawful presence. It is not the same as being in H-1B status, and it does not guarantee you will never face enforcement. But it does not require you to depart.

We first wrote about the 240-day rule back in 2019, when processing delays and a pause in premium processing left many employers asking how long their H-1B workers could keep working. The question is back. We are again hearing from employees whose same-employer extensions have sat at USCIS long enough to run past day 240, and many of them believe they are now required to pack up and depart. This article walks through when the rule applies, what crossing day 240 actually means, and what you can do about it.

Quick Answer: What Happens After 240 Days of an H-1B Extension?

If your employer timely filed a same-employer H-1B extension and USCIS has not decided it within 240 days after your I-94 expired, your work authorization under 8 C.F.R. § 274a.12(b)(20) ends. You must stop working unless you have another, independent basis to work.

That does not mean you must leave the United States. A timely filed, nonfrivolous extension generally keeps you in a period of authorized stay for unlawful presence purposes until USCIS decides the case.

Permission to stay and permission to work are not the same thing. Day 240 ends the second one, not the first.

What the 240-Day Rule Is

The 240-day rule is a work authorization rule, not a status rule. It comes from 8 C.F.R. § 274a.12(b)(20), which lets certain nonimmigrants keep working for the same employer for up to 240 days after their authorized stay expires, as long as a timely extension request is pending.

For an H-1B worker, the rule requires three things:

• A timely filing. USCIS must receive the extension petition before the I-94 expires. Even one day late, and the rule does not apply.
• The same employer. The petition must be filed by the employer the worker is already working for, continuing the same employment.
• A pending case. The petition must still be waiting on a decision. If there is a denial, the 240-day rule ceases.

The 240 days start the day after the I-94 expires. Work authorization ends on whichever comes first: day 240, or a decision. If USCIS approves, the worker keeps working under the new approval. If USCIS denies, the regulation says work authorization ends automatically upon notice of the denial, even if the 240-day clock has time left.

Example: Jimmy’s employer files his H-1B extension on March 2, 2026. His I-94 expires on May 15, 2026, and the case is still pending. Day 1 of the 240-day period is May 16, 2026, so Jimmy can keep working through January 10, 2027, unless USCIS decides the case sooner.

When It Applies, and When It Does Not

The 240-day limit only bites on straight extensions: the same employer, continuing the same job, asking USCIS for more time. Other H-1B filings that include an extension request run on a different rule.

Filing	Does the 240-day limit apply?	Why
Same employer, same job, extension only	Yes	Work continues under 8 C.F.R. § 274a.12(b)(20)
Change of employer (“transfer”)	No	H-1B portability under INA § 214(n) and 8 C.F.R. § 214.2(h)(2)(i)(H)
Same employer, amended petition for new or changed employment	Not if portability applies	Portability can cover new employment with the same employer, but only if the conditions below are met
Extension filed after the I-94 expired	No	Not timely; no continued work authorization at all

 

Portability lets an eligible H-1B worker work under a pending change of employer or amended petition until USCIS makes a final decision, with no 240-day cap. When DHS codified the portability rules in its 2016 AC21 final rule, it explained that the 240-day rule applies to timely filed extensions with the same employer and is not relevant in portability situations.

Portability has its own conditions. Under INA § 214(n) and 8 C.F.R. § 214.2(h)(2)(i)(H), the worker must have been lawfully admitted in H-1B status. The nonfrivolous petition for new employment, which can be filed by the same employer, must be filed before the worker’s period of authorized stay expires. And the worker must not have worked without authorization from the last admission through the filing. A separate provision, 8 C.F.R. § 214.2(h)(2)(i)(E)(2), says a worker cannot work under materially changed terms until the amended petition is approved unless they qualify for portability. A filing labeled “amendment” does not qualify on the label alone; if those conditions are not met, portability is not available.

One caution: whether a filing is a true extension or an amendment for changed employment depends on the facts, so check with counsel before relying on portability instead of the 240-day clock.

The rule also covers other work classifications, including L-1, O-1, E, and TN, but this article focuses on H-1B.

Crossed Day 240? Stop Working. You Do Not Have To Pack Your Bags.

On day 241, your permission to work ends. Your permission to be in the United States does not. These are two different things, and the 240-day rule only controls the first one.

You must stop working

Work after day 240 is unauthorized employment, even if your employer is the one who filed for you and even if approval feels close. Unauthorized employment is a status violation. It can lead to a denial of the pending extension and cause problems with future filings, including a green card. Your employer also has I-9 obligations and cannot keep you on the job.

You do not have to leave

A timely filed, non-frivolous extension puts you in what is called a period of stay authorized by the Attorney General, often shortened to “POSABAG.” While the extension is pending, you are generally treated as being here lawfully for purposes of unlawful presence. That protection does not expire at day 240. It lasts until USCIS decides the case.

In practical terms:

• You can stay in the United States while the petition remains pending.
• You generally are not accruing unlawful presence during that time.
• If USCIS approves, the approval generally reaches back to cover the gap, and you can return to work.
• If USCIS denies, unlawful presence generally starts the day after the denial, and you will need to leave or find another lawful basis to stay. This assumes the extension was timely, nonfrivolous, and not undermined by unauthorized work.

Leaving can actually hurt you

Many people assume departing is the safe, “compliant” choice. It often is not. An extension of stay is a request to stay longer in the United States, so if you leave while it is pending, USCIS generally will not grant that part of the request. The underlying H-1B petition can still be approved, but you would then need a valid visa stamp and a new admission to come back. That means consular appointment backlogs and possible administrative processing, all while you still cannot work. Talk to counsel before you travel.

A note on enforcement

No regulation expressly bars ICE from issuing a Notice to Appear to someone in this position. In July 2026, we became aware of H-1B workers being placed in proceedings after day 240. These reports do not reflect a stated policy, and past cases with pending filings have often been dismissed. Still, keep copies of your receipt notice, prior approval, and I-94 with you, and call counsel right away if you are contacted by ICE.

Why a Change of Status Usually Is Not the Answer

A common instinct after day 240 is to file a change of status, for example to H-4 as a dependent spouse or to F-1 as a student. In most cases, this will not solve the problem.

To change status, you generally must be maintaining a valid nonimmigrant status when you file. Once your I-94 has expired, you are not in H-1B status. You are in a period of authorized stay while USCIS decides your extension. POSABAG protects you from accruing unlawful presence, but it is not the same as being in status.

That means any new change of status request effectively rides on the pending H-1B extension. If the extension is approved, your status is restored and the later request can be evaluated. If the extension is denied, the change of status request will very likely be denied too. Either way, the new filing usually cannot be decided before the extension, so it rarely gets you back to work faster.

The same “bridge” logic applies to a new H-1B employer filing for you while you are in this window: the request to extend your stay through the new petition generally depends on the earlier extension being approved. These situations are fact-specific, so speak with counsel before filing anything new.

What You Should Do

The best fix is a decision. Your two main tools for getting one are a premium processing upgrade and, if that does not work, federal litigation.

1. Upgrade to premium processing, ideally before day 240

Your employer can upgrade a pending H-1B extension at any time by filing Form I-907. Since March 1, 2026, the premium fee for H-1B petitions is $2,965 under DHS’s inflation adjustment rule (91 Fed. Reg. 1059), and USCIS commits to act within 15 business days. “Act” can mean an approval, a denial, or a Request for Evidence (RFE). If USCIS issues an RFE, a new 15 business day clock starts once your response is received.

Do not wait until day 239. A case that draws an RFE can easily run past day 240 even with premium processing. We recommend tracking the 240-day date from the day of filing and upgrading early enough to leave room for an RFE cycle.

2. If premium processing is unavailable or does not produce a decision, consider litigation

Sometimes premium processing is not an option, or it does not end the wait. USCIS can suspend premium processing, or a case can stall after an RFE response or sit in background or fraud review with no decision. In those cases, federal court may be the only lever left.

A mandamus and Administrative Procedure Act (APA) lawsuit asks a federal judge to compel USCIS to act on a petition it has unreasonably delayed. The court weighs factors such as how long the case has been pending and the harm the delay is causing. When a worker has lost the ability to work while waiting, that harm is concrete and easy to document.

In our litigation practice, USCIS has to respond to lawsuits within 60 days of being served. This can be a decision or they can fight the case, so it is not a guarantee and results depend on the facts and the court. But, it can shake the trees loose and push them to make a decision. A lawsuit also does not ask for an approval. It asks for a decision, so the petition should be strong on the merits before you file. We typically consider litigation when premium processing is unavailable, when a premium case stalls, or when a case sits in background or fraud review with no movement.

3. Employers: plan for the gap

• Calendar day 240 at filing for every same-employer extension.
• Document the I-9. USCIS employer guidance directs you to note “240-Day Ext.” and the filing date on the I-9 and keep the receipt notice with it (see our article on I-9 problems caused by receipt notice delays). Reverify when the approval arrives, or remove the employee from work when day 240 arrives without one.
• Stop work, not the relationship. Consider an unpaid leave of absence rather than termination, so the employee can return as soon as the approval issues.
• Communicate clearly. Tell the employee in writing that they must stop working but are not required to leave the country.

Example: How an Employer Can Avoid an H-1B 240-Day Work Authorization Gap. Acme files a same-employer extension for a software engineer whose I-94 expires June 1. By late November, the case is still pending with no RFE. HR flags it at day 180 and Acme upgrades to premium. USCIS issues an RFE, Acme responds within two weeks, and the approval arrives before day 240. Had Acme waited until late January, the same RFE cycle would have pushed the employee past day 240 and off the job.

Frequently Asked Questions

What is the H-1B 240-day rule?

It lets an H-1B worker keep working for the same employer for up to 240 days after the I-94 expires, while a timely filed extension is pending. Work authorization ends at day 240 or when USCIS decides the case, whichever comes first.

Can I stay in the U.S. after 240 days of my H-1B extension?

Generally, yes. A timely filed, nonfrivolous extension keeps you in a period of authorized stay, and you generally do not accrue unlawful presence while it is pending. You must stop working, but you are not required to leave. See “Crossed Day 240?” above.

Does the 240-day rule mean my H-1B status is extended?

No. The rule extends only your permission to work, for up to 240 days. Your H-1B status ends when your I-94 expires. While the extension is pending, you are in a period of authorized stay, which is not the same as being in status. If USCIS approves the extension, the approval generally covers the gap, and your new H-1B status runs from the old expiration date.

Can I work on day 241 if my extension is still pending?

No, unless you have a separate basis for work authorization. Working past day 240 is unauthorized employment and can jeopardize the extension and future filings.

Does the 240-day rule apply to H-1B transfers?

No. A change of employer petition runs on H-1B portability, which allows work while the petition is pending without a 240-day cap, provided the portability conditions are met.

Does the 240-day rule apply to amended petitions?

Not necessarily. An amended petition for new or changed employment with the same employer may qualify for H-1B portability, which has no 240-day cap. But an amendment does not qualify automatically. It depends on the nature of the employment and whether the portability requirements are met.

What happens if USCIS denies my extension after day 240?

You will need to depart or find another lawful basis to remain. Unlawful presence generally begins the day after the denial, assuming the extension was timely and nonfrivolous and you did not work without authorization.

Can I upgrade to premium processing after day 240?

Yes. Your employer can file Form I-907 for a pending petition at any time. Upgrading before day 240 is better, because an RFE can add weeks.

Can I sue USCIS for delaying my H-1B extension?

Yes. A mandamus and APA lawsuit asks a federal court to compel USCIS to act on an unreasonably delayed petition. It seeks a decision, not a guaranteed approval. See “What You Should Do” above.

The Bottom Line

The 240-day rule limits how long you can work on a pending same-employer extension. It does not set a deadline to leave. If you cross day 240, stop working, keep your documents handy, talk to immigration counsel before departing the United States, and push for a decision through premium processing or, if needed, federal court.

Is your H-1B extension approaching or already past 240 days?

Reddy Neumann Brown PC helps H-1B employees and employers with delayed extension petitions, premium processing, and federal litigation challenging unreasonable USCIS delays. Contact our immigration attorneys at 713-953-7787 or contactus@rnlawgroup.com to discuss your options.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business immigration community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.