What is the 240-Day Rule for H-1B Extensions?

The 240-day rule for H-1B extensions is a provision that allows H-1B holders to continue legally working in the U.S. while their extension petition is pending. The provision allows the H-1B worker continued employment for up to 240 days past the current H-1B expiration. To qualify for the automatic extension, the H-1B extension must have been timely filed, meaning it was filed before the expiration of the current H-1B, and the H-1B worker must continue to work under the same terms and conditions as specified in the original H-1B. Essentially, the worker must be working for the same employer in the same role.  

The extension is only valid while the H-1B extension is in process. If the petition is approved, the H-1B status is extended only until the expiration of the new H-1B. If the extension is denied, the employee must cease employment immediately and leave the U.S. if they have no other underlying lawful status. Note that any time worked in H-1B status during this 240-day automatic extension is still counted toward the 6-year H-1B maximum.*

During that 240-day extension, H-1B workers should avoid traveling outside the U.S for a couple reasons. First, traveling internationally could be considered an abandonment of the pending extension petition. This is true of any H-1B extension petition. Second, the H-1B worker could encounter problems re-entering the U.S. without a valid visa stamp. 

If the 240-day automatic extension is nearing its end and there is (1) still no decision from USCIS; and (2) the petition is still within USCIS’s published processing times, the H-1B worker or petitioner may “upgrade” to premium processing. Premium processing is expedited USCIS processing of the form I-129 used to petition for H-1B status. For a whopping $2,805 fee (payable by either the petitioner or the H-1B employee), USCIS guarantees adjudication of the pending H-1B petition within 15 business days. While the best outcome is that USCIS simply approves the extension petition within those 15 business days, USCIS may also deny it or issue a Request for Evidence (“RFE”). In the event of an RFE, the 15 business day clock resets once USCIS receives the RFE response. For this reason, it is wise to consider a premium processing upgrade early enough to anticipate any potential RFE.    

If you have questions about maintaining your or your employee’s H-1B status, please contact me through the “Contact Us” link on my website or by emailing info@pdortegalaw.com. 

*There are a few exceptions for specific situations.

Sources

“7.5 H-1B Specialty Occupations.” USCIS, 26 July 2023, www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/70-evidence-of-employment-authorization-for-certain-categories/75-h-1b-specialty-occupations. 

“How Do I Request Premium Processing?” USCIS, 18 June 2024, www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing.