Employers filing H-1B petitions need to be aware of the 240- day rule as it applies to filing H-1B extensions, as this rule allows employees to continue to work beyond the expiration of their authorized stay.
This rule is particularly important when an Employer is filing an H-1B extension either when premium processing is unavailable or an Employer decides not to utilize the Premium Processing service, especially given the long processing times.
USCIS has provided guidance for employers and stated that employees are authorized to continue work for the same employer for up to 240 days beyond the expiration of their current authorized stay, while their petition or pending or until USCIS makes a decision on their case, whichever is sooner.
In order to qualify for the 240- day extension an Employer needs to ensure they timely file a request for an extension. This means filing the application prior to the expiration of the employee’s current authorized stay, as determined by their most recent I-94.
Let’s take a look how the 240- day rule works in practice.
If an Employer has an employee whose current H-1B is due to expire on April 1, 2021 and that Employer files for a 3- year extension on February 1, 2021, the 240-day rule would allow the employee to work for 240 days from April 1, 2021. Because a timely filed application was submitted to USCIS, the employee is now authorized to work until November 27, 2021. If November 27, 2021 comes and the case is still not adjudicated then the employee is authorized to remain in the U.S. by virtue of having a pending application. However, the employee must immediately stop work.
In the same scenario if USCIS denies the case in say August 2021, then the employee is no longer authorized to work as the regulation states that if USCIS adjudicates the case before 240 days and denies the application the employment authorization will automatically terminate.
From a practical point of view Employers are encouraged to upgrade applications to premium processing once a case has been pending for 200 days to avoid a situation where an employee has to stop work, especially given the increased delays in adjudicating these applications.
For Employers/Employees not wanting to pay the Premium processing fee, USCIS has also confirmed that Employers can submit an inquiry if a petition has been pending for more than 210 days from the date of filing, by calling USCIS to submit a service request, on the basis that the case is outside of normal processing times.
Updating the I-9
Employers are encouraged to update the I-9 by indicating “240- day extension” and then listing the date when the 240 days would end for example “240-day extension until 11/27/21.”
Change of Employer
The regulation specifically mentions employment with the same employer which means that the 240-day rule does not apply to H-1B transfers where the individual is switching to a new employer. Therefore, individuals whose Employer files an H-1B transfer can work beyond the 240 days and until such time as their case is adjudicated by USCIS.
If you have any questions related to the above rule, please do not hesitate to contact one of our Immigration Attorneys. Chris Prescott, PLG Partner can be contacted at cprescott@patellegal.com and Attorney Monique Mutombo can be contacted at mmutombo@patellegal.com.